A New Chapter for the JAG Corps Begins - Air Force Judge Advocate

Spring 2010 Volume 37, No. 1
The Reporter
Th e Ju d g e Ad v o c a t e Ge n e r a l’s Co r p s
Plus:
Chastising Pirates
Kelly Who
The Fate of Cluster Munitions
Platforms for Medical Readiness
A New Chapter for the JAG Corps
Begins

Spring 2010 Volume 37, No. 1
The Reporter
Th e Ju d g e Ad v o c a t e Ge n e r a l’s Co r p s
Features
5 A New Chapter
Lieutenant General Richard C. Harding
7 The Long Blue Line
Lieutenant General Jack L. Rives
11 A Wonderful Life
Major General Charles J. Dunlap, Jr.
14 The Finest Professionals
Chief Master Sergeant Debbie Stocks
16 Chastising Piracy
Lieutenant Colonel Theodore Vestal
& Colonel Albert Klein, Jr.
22 Kelly Who
Major Jeffrey G. Palomino
26 The Fate of Cluster Munitions
Major Matthew E. Dunham
31 Platforms for Medical Readiness
Captain Charles G. Kels
Departments
1 Message From The Commandant
2 Point Counterpoint
4 AFJAGS Update
35 Developments from the Field
38 Military Justice Pointers
44 Books In Brief
48 Paralegal Perspective
50 Legal Assistance Notes
52 Heritage to Horizons
53 Where In The World
The 16th Judge Advocate General, Lieutenant General
Richard C. Harding, with his wife, Ms. Linda Harding.
On the
Cover
Vice Chief of Staff of the
Air Force General Carrol
H. Chandler and Ms. Linda
Harding pin-on Lieutenant
General Richard C.
Harding at his investiture
ceremony held on 23
February 2010 at Bolling
Air Force Base, D.C.
Unless otherwise indicated, views expressed herein are those of the individual author. They do not purport to express the views of The Judge Advocate
General, the Department of the Air Force, or any other department or agency of the United States Government. Subscriptions: Paid subscriptions
are available through the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402. The Reporter can also be found
online at http://www.afjag.af.mil/library. Citation: Cite as [Author], [Title], Th e Re p o rt e r, [date], at [page number].

The Reporter
Spring 2010
Volume 37, Number 1
Message from the
Commandant
Colonel Tonya Hagmaier
The Reporter is published quarterly
by the Judge Advocate General’s
School for the Office of The Judge
Advocate General, United States Air
Force. Contributions from all readers
are invited. Items are welcome on
any area of the law, legal practice, or
procedure that would be of interest
to members of the Judge Advocate
General’s Corps. Items or inquiries
should be directed to the Judge
Advocate General’s School, AFLOA/
AFJAGS (150 Chennault Circle,
Maxwell AFB AL 36112-6418) (Comm
(334) 953-2802/DSN 493-2802).
LIEUTENANT GENERAL
RICHARD C. HARDING
The Judge Advocate General
of the Air Force
MAJOR GENERAL
STEVEN J. LEPPER
Deputy Judge Advocate General
of the Air Force
COLONEL TONYA HAGMAIER
Commandant
The Judge Advocate General’s School
LIEUTENANT COLONEL
KYLE W. GREEN
MAJOR RYAN D. OAKLEY
Editors
THOMASA T. PAUL
Illustrator
Before we turn the page, we should pause and reflect that we stand
on the shoulders of giants … They brought us this far in our journey,
and what a journey it has been.
Lieutenant General Richard C. Harding
The Judge Advocate General
Spring is a time of change and our JAG Corps is no
exception. As our Nation’s capital was blanketed by a late
winter blizzard, I attended the retirement of Lieutenant
General Jack L. Rives, who along with Major General Charles J.
Dunlap, Jr. and Chief Master Sergeant Debbie Stocks provided
us with a bold, brilliant, and visionary leadership team. In this
edition of The Reporter, we honor their service over three decades
in building a better JAG Corps. Simultaneously, we celebrate a
new chapter with the investiture of Lieutenant General Richard
C. Harding as our 16th Judge Advocate General, sharing his
enthusiasm for an even more promising future.
In that spirit, we are proud to share with you a series of forwardleaning
articles on topics across the expansive field of practice areas
in the JAG Corps. First, Lieutenant Colonel Theodore Vestal and
Colonel Albert Klein, Jr. consider the appropriate instruments of
power to challenge the global scourge of piracy, including the use
of air power. Next, Major Jeffrey Palomino addresses the lessons
learned from the Kelly Flinn case, while Captain Matthew Dunham
tackles the controversial issue of cluster munitions. Captain Charles
Kels covers the medical community’s efforts to balance wartime
readiness and peacetime care. Additionally, Major Conrad Huygen
analyzes the results of an AFLOA/JAJM study on the use of expert
witnesses and consultants, providing excellent practice pointers for
base legal offices to follow.
THE JUDGE ADVOCATE GENERAL’S SCHOOL
As we turn the page, it is worth reflecting that we indeed stand
on the shoulders of giants. In the words of Lieutenant General
Harding, “we owe them our thanks and pledge to carry on with the
same dedication and excellence they demonstrated.”
UNITED STATES AIR FORCE
Spring 2010
1

In Response to: Protecting Privileged Communications in the Age of the DOD Notice and Consent
Banner, Th e Re p o r t e r, Fall 2009
By Mr. Rick Aldrich
Point
Counterpoint
The defense-wide information assurance
program is responsible for responding to
inquiries relating to and tracking compliance with the
new DOD Banner, which was revised and updated in the
wake of United States v. Long, 64 M.J. 57 (CAAF 2006). An
article in the last issue of The Reporter raised several issues
concerning the new privileged communications provisions
of the banner. We requested an opportunity to respond to
the article and provide clarification for practitioners on this
important topic.
First, the article asserted, “The new banner requires system
administrators to examine data or communications and
ascertain whether they are privileged before turning them
over to LE/CI [law enforcement/counterintelligence]
or personnel misconduct (read CDI) investigators.” The
banner does not expressly place such a burden on system
administrators. This provision was never intended to require
system administrators to screen data or communications for
privilege prior to turning it over to LE or CI personnel.
Indeed most system administrators are not trained to
recognize privileged communications (other than plain
markings to that effect, but those are not determinative).
There is also a concern that if system administrators tried
to make such determinations they may unnecessarily and
perhaps inadvertently impede investigations.
Certainly there is nothing wrong with a system administrator
alerting LE or CI personnel that the communications were
marked privileged, if he or she happened to note that fact,
but system administrators are not required to perform
any screening role and there are potential dangers in them
assuming such a role. LE/CI personnel do utilize procedures
to screen information for privileged materials, and system
administrators may support these efforts, but the screening
is best performed by personnel who are specifically trained
for that task.
The article also stated, “When an e-mail is encrypted, system
administrators can feel confident that there is no malicious
code in the e-mail, since it is being transmitted to and from
an IS [information system] that is properly configured to
protect against viruses and hackers. Because encrypted
e-mail is so trustworthy, system administrators do not need
to worry about scanning or searching the contents of the
e-mail for network threats.”
The mere fact that an e-mail is encrypted provides no
reliable indication as to whether the e-mail contains
information that may prove useful to a system administrator
in his/her role of protecting the system. Even though DOD
systems are designed with protections against malware
and viruses, and even if all DOD information systems were
all properly configured, that would not guarantee a virusfree
and/or hacker-free environment. Indeed, increasingly,
sophisticated hackers are using encryption to introduce
malware or hacker tools to DOD systems and using
encryption to exfiltrate valuable or sensitive information.
Finally, the article suggested a list of attorneys,
psychotherapists, clergy and their assistants could be
provided to the Network Control Center (NCC) and then
whenever the NCC wanted to look at one of the e-mails
from or to someone on the list they would call the 24th
AF legal office for directions. This would impede systems
administrators in their ability to protect DOD information
systems. For example, if a system administrator needs
to review an e-mail for purposes related to securing and
protecting the network or system, this important activity
is not restricted by the fact that the sender or receiver of
the e-mail may fall into one of those categories, nor the
potential for the e-mail to contain privileged information
(and of course, not all e-mails to or from those persons
will contain privileged information). Indeed, the user
agreement states,
Nothing in this User Agreement shall be
interpreted to limit the user’s consent to, or
in any other way restrict or affect, any U.S.
Government actions for purposes of network
administration, operation, protection, or defense,
or for communications security. This includes
2
The Reporter

all communications and data on an information
system, regardless of any applicable privilege
or confidentiality.
Much careful thought went into the banner’s development,
to ensure, among other things, it would maximize DOD’s
legal authority to defend its systems while still protecting
privileged communications. It will, nevertheless, continue
to be refined and updated as dictated by the dynamic
nature of information systems and the evolving nature of
technology and the law.
Rick Aldrich (B.S., U.S. Air Force Academy (1981); J.D., UCLA
(1986); LL.M., University of Houston (1999) is currently a
Lead Associate with Booz Allen Hamilton, supporting the
Assistant Secretary of Defense for Networks and Information
Integration/Department of Defense Chief Information
Officer and the Defense-wide Information Assurance
Program. He previously served as the Deputy Staff Judge
Advocate for the Air Force Office of Special Investigations,
specializing in the cybercrime portfolio.
Response from: Lt Col Graham Todd, Author, Protecting Privileged Communications in the
Age of the DOD Notice and Consent Banner
While the user agreement does not
expressly state that system administrators
will determine whether a communication is privileged prior
to turning the communication over to investigators, the
requirement can be logically inferred from two provisions
in the Agreement. The first provision of the memorandum
from the DOD Chief Information Officer, on the Standard
Consent Banner and User Agreement policy (9 May 2008)
states: “Notwithstanding the above, using this IS does not
constitute consent to PM, LE or CI [personnel misconduct,
law enforcement, or counterintelligence] investigative
searching or monitoring of the content of privileged
communications, or work product, related to personal
representation or services by attorneys, psychotherapists,
or clergy, and their assistants. Such communications and
work product are private and confidential.” The second
provision states: “Further, the U.S. Government shall take
all reasonable measures to protect the content of captured/
seized privileged communications and data to ensure they
are appropriately protected.”
Regardless of whether the drafters “never intended
to require system administrators to screen data or
communications for privilege prior to turning it over to
LE or CI personnel,” the language of the Agreement and
logic necessitate such an inference. First, the Agreement
does not provide consent to “investigative searching or
monitoring of the content of privileged communications,
or work product.” Second, “the U.S. Government shall take
all reasonable measures to protect the content of captured/
seized privileged communications.” Thus, if the user has
not consented to investigators searching/monitoring their
privileged communications, and the U.S. Government
will take “all reasonable measures to protect” privileged
communications, who is going to “take all reasonable
measures” mentioned in the Agreement It seems logical
and appropriate that system administrators are in the best
position to screen e-mails and other communications prior
to handing them over to investigative personnel.
The fact that system administrators are not currently
trained for this responsibility is a key reason why I wrote
the article. Until good policy, procedures, and training are
in place, my article provided three steps to help protect
privileged communications against investigative access
prior to a proper review by a team involving network
personnel, a judge advocate, and when appropriate,
investigative personnel, often referred to as a “taint team.”
Those steps include marking the subject line and the
message body, encrypting the message, and providing a
list to the installation network control center of users who
are most likely to engage in privileged communications.
Right now, users can implement two of the three steps,
and installations can begin creating “privileged user lists”
as I proposed in my article. Meanwhile, I hope readers
will consider the article a catalyst for the development of
clear policy and procedures that will ensure privileged
communications are truly protected. We owe our clients the
best legal roadmap as soon as possible.
Have a different perspective on one of the articles
The Reporter welcomes diversity of opinion. Send your responses to Maj Ryan
Oakley at ryan.oakley@maxwell.af.mil.
Spring 2010
3

THE JUDGE ADVOCATE GENERAL’S SCHOOL
UNITED STATES AIR FORCE
AFJAGS Update
GATEWAY I TAKES FLIGHT
Thirty-two judge advocates attended the inaugural GATEWAY
I leadership course on 11-29 January 2010 at the Judge Advocate
General’s School. This mid-career course was developed to
prepare new JAG majors for the increasingly diverse and
complex issues they will face in the next level of their careers.
The unique curriculum was based on the recommendations of
over 400 survey respondents, including 200 field-grade officers
concerning “what majors need to know.”
At GATEWAY I, students interacted in small seminar groups
led by subject-matter experts on a myriad of front-burner legal
issues, with a focus on enhancing leadership, management,
and communications skills. Additionally, students had the
opportunity to participate in groundbreaking judge advocatefocused
wargame called JAGWAR, which was held at the Air
Force Wargaming Institute at Maxwell AFB.
The next chapter begins on 9-27 August 2010, with a even bigger
and better GATEWAY II. Also be on the lookout GATEWAY
III, tentatively scheduled for January 2011. Check the Course
Nomination System for further updates.
Distance Learning Update
The Fiscal Year 2010 schedule for JAG School webcasts is
available on CAPSIL. With multiple sessions scheduled each
month, JAG School webcasts are a great way to enhance your
office training program. Upcoming webcasts will cover diverse
topics including voir dire, professional responsibility, cyber law,
clemency, appellate updates, and much more! Remember—most
live JAG School webcasts offer CLE credit.
If you miss a session or want to view a previous webcast,
recordings of all sessions are posted on CAPSIL. Visit the
Webcast Learning Center on CAPSIL via the link below for
more details, and watch each week’s Online News Service for
announcements about upcoming sessions.
https://aflsa.jag.af.mil/apps/jade/collaborate/course/
category.phpid=198
The Inaugural GATEWAY I Class
UPCOMING COURSES
14 – 25 Jun Staff Judge Advocate Course 10-A
Law Office Management Course 10-A
22 Jun – 4 Aug Paralegal Apprentice Course 10-05
12 Jul – 19 Sep JASOC 10-C
12 Jul – 24 Aug Paralegal Craftsman Course 10-03
9 – 27 Aug GATEWAY II
10 Aug – 22 Sep Paralegal Apprentice Course 10-06
23 – 27 Aug Environmental Law Course 10-A
13 – 24 Sep Trial and Defense Advocacy Course
10-B
20 – 24 Sep Aircraft Accident Investigation Course
10-A
Check the Course Nomination System on FLITE
for up to the minute schedules
and class availability.
Background, U.S. Air Force photo by SrA Stephen Reyes
4
The Reporter

A New Chapter
THE INVESTITURE OF THE 16TH JUDGE ADVOCATE GENERAL
The following is an excerpt of the remarks made by Lieutenant General Richard C. Harding at his
investiture ceremony held on 23 February 2010 at Bolling Air Force Base, D.C.
this ceremony is more about
you than me. This ceremony signifies
change and a new chapter in our history.
Before we turn the page, we should pause and
reflect that we stand on the shoulders of giants.
Those who preceded us and guided us to this
point are those giants. They brought us this far
in our journey, and what a journey it has been.
We owe them our thanks and our pledge to carry
on with the same dedication to excellence they
demonstrated.
Two weeks ago, while cleaning out my
desk in the Office of the AFLOA Commander,
I came across an “I LEAD!” tablet. “I LEAD!”
tablets are familiar to JAG Corps members.
These tablets contain quotes from Air Force JAG
Corps members of the past. On top of the tablet
was a quote from Major General James Cheney, a
former Air Force TJAG. General Cheney passed
away in 1998, but his words ring true across a
timeless void, and in that sense, he is present with
us today. General Cheney’s words quoted on the
tablet said, “Though the past may inspire us, it
is the challenge of the future that must motivate
us.” General Cheney was right at the time he
said those words, and he is right today. While we
are proud of our storied past, we are even more
excited about our future … and it’s our vision of
what our future can be that propels us forward.
Spring 2010
5

We believe in wisdom … the
belief that you never stop learning
your craft and developing your
professional skills.
was spot on when it said, “Injustice anywhere is
a threat to justice everywhere.”
Lt Gen Harding addresses the Corps
for the first time as TJAG.
Our future is just over the horizon, always
within sight.
As a great leader of our Nation once said,
the torch has been passed to a new generation.
In a timeless sense, generations of JAG Corps
members not yet born are counting on us to carry
the torch high and to carry it far. We will not fail
to meet the expectations of our fellow Airmen
today as well as the expectations of those who
will follow us in the future. Greatness is not our
birthright, but it can be our destiny. To paraphrase
Thomas Paine, “We have it within our power to
mold our destiny.”
I am certain we will succeed in maintaining
excellence in support of the Air Force and achieve
an honored place in JAG Corps history, because
our beliefs allow for nothing less … And what
are our beliefs We believe in our core values …
integrity, service and excellence. We believe in
our JAG Corps strengths … our core character
competencies, which are drawn from our Air
Force core values. They are wisdom, valor, and
justice. We believe in wisdom … the belief that
you never stop learning your craft and developing
your professional skills. No one is too senior to
stop learning … me included. We believe in valor
… leaning into the wind when you’re right and
your views on a legal topic are unpopular. We
believe in justice … In that regard, we believe that
Dr King’s letter from the Birmingham jail in 1963
We believe that we are a nation of law …
founded on the principal that no person is above
the law, and no person is beneath the law. We
believe that when we go to war, we take our
national values with us, the uppermost of which
is respect for the rule of law.
We believe in each other. We believe that
when we face tough challenges, we can count on
each other. We believe that when we are
reassigned or deployed, our families can count
on support from each other. We believe we are
Wingmen for Life.
And we believe in our client … the United
States Air Force. We believe it is the best on the
planet, second to none. We believe that, as a full
partner in the joint fight, it protects the Nation
with unmatched power and agility.
We believe our values guide, comfort and
protect us, no matter what the circumstances.
In a few hours from now, JAGs and paralegals
will wake up in Bagram, Kandahar, Balad, and
Baghdad. They will carry with them wisdom,
valor, justice. Those traits will sustain them,
guide, comfort and protect them, in the combat
environment and when they return home.
If I could pick one time, one place, and one
team in the span of the JAG Corps’ history to
lead, I would pick this time, this place, and this
team. The challenge is great; the rewards are
many. I am confident you are ready to succeed
and will succeed, because you carry values that
will allow nothing less. You are the dream team.
The big game awaits. And I am so awfully proud
to take the field with you!
6
The Reporter

Gen Stephen Lorenz officiates Lt Gen Rives retirement ceremony
THE LONG BLUE LINE
THE 15TH JUDGE ADVOCATE GENERAL REFLECTS UPON RETIREMENT
The following remarks, which were edited for this publication, were made by Lieutenant General Jack L.
Rives at his retirement ceremony at Bolling Air Force Base, D.C., on 5 February 2010.
Those of us in the military
are in service to a grateful Nation.
When we travel in uniform, people
often approach us just to say “thank you.” Many
don’t know which service we’re in or what
rank we have, they just want to express
appreciation for our service. That of course
means a lot. Today, I’m the grateful one:
grateful for the opportunity to serve with fellow
members of the military and grateful for the
experiences I’ve had.
In the summer of 1970, I tried on an Air Force
uniform for the first time as an incoming ROTC
cadet. This morning, while I prepared and put on
my uniform for the final time, I had a flood of
memories: some poignant and some that brought
smiles to my face. I thought of those in the room
today and countless others who can’t be with us.
My thanks begin at home. I would not be
here without the inspiration and support of my
family. Marie sacrificed a lot to pack up, move
Spring 2010
7

around, and repeatedly start home life anew, all
over the world. All my memories begin with her.
There are a lot of things we can’t control, such
as when or where we’re born, and the conditions
under which we’re raised. My home town of
Rockmart, Georgia had about 4,000 people. I was
blessed with the best of families. My parents were
great role models and I’ve tried to live my life in
the manner they lived theirs.
At the University of Georgia, I joined ROTC.
I had no idea the impact that decision would
have. I knew I wanted to be a lawyer; after I
was commissioned I went to law school on an
educational delay, then I entered the Air Force
with a four-year commitment. The one thing
I knew for certain was that I would serve only
four years.
And then the journey began. What a great
way to spend 33 years! There is nothing I would
rather have done. The places I’ve been and the
things I’ve done have been extraordinary. I came
into the military with a lot of education but with
a lot to learn. From the very
first day, I helped Airmen with
legal assistance issues. I advised
commanders on disciplinary
matters. I saw the difference
judge advocates can make. We’re
members of two professions:
the profession of law and the
profession of arms, and we’re
able to do both the right way.
Through time, I came to appreciate the
Air Force core values: Integrity, Service and
Excellence. And even before we formally
identified them, I learned that members of
the JAG Corps live by our guiding principles:
Wisdom, Valor and Justice.
People sometimes ask about my favorite
assignment. I enjoyed them all. One reason is
because judge advocates have such a diverse
practice of law. A few years ago, I heard Justice
Stephen Breyer of the United States Supreme
Court say that the legal profession has three
While technology
has changed, the truly
important things
have not. Our values
remain constant, and
so do our people.
Lt Gen Rives with his wife Marie and family
facets: the bar, the bench, and academia. In my
career, I served in all three areas.
It’s been a special privilege to serve alongside
the senior leaders of our sister service JAG Corps
during a remarkable time in our Nation’s legal
history. The primacy of law was under attack,
even in this country by some. My colleagues in
the JAG Corps stood up for what’s right.
Much has changed since
I entered active duty: the typewriters,
rotary dial telephones,
and carbon paper we relied on
would mystify my grandsons.
We mailed letters, and they
arrived days later. We used
actual books to research the law.
Our computer assisted legal
research was very basic. But
while technology has changed,
the truly important things have not. Our values
remain constant, and so do our people.
My life in the Air Force has been about
people—those I’ve been privileged to know,
to serve, and to serve with. I’ve had wonderful
leaders and mentors. Today is about a long blue
line. That line stretches from past generations
who built the foundation on which my colleagues
and I served, to today’s superb junior officers and
enlisted personnel. We stood on the shoulders of
those who came before us and took as a sacred
trust our responsibility to prepare, mentor, and
groom those who follow.
8
The Reporter

That line includes Major General Charlie
Dunlap, my Deputy and strong partner for the
last four years. He is brilliant, creative, and always
engaged. It includes Chief Master Sergeant Deb
Stocks, our Senior Paralegal Manager. She is
beloved in the paralegal community and has
helped us find ways to utilize paralegals more
effectively. And the blue line continues with
the next Judge Advocate General, Lieutenant
General-select Rich Harding; the new Deputy
Judge Advocate General, Major General-select
Steve Lepper; and our new Senior Paralegal
Manager, Chief Master Sergeant John Vassallo.
They will lead the JAG Corps with integrity
and distinction. I wish them the very best in the
years ahead.
Our JAG Corps features a strong partnership
between the active force and reserve components.
More so than at any time in our history, our
active duty, Reserve, and Guard personnel are
integrated in a Total Force, serving shoulder to
shoulder throughout the world. It takes real
commitment and sacrifice to do what our reserve
component colleagues do. JAG has been described
as “the ultimate team.” We all take pride in the
accomplishments of fellow members of the JAG
Corps. Consider four and half years ago, when
Hurricane Katrina blew through the Gulf Coast.
A young JAG major helped prepare fellow
members of the Utah Guard to deploy to New
Orleans. After several long days, she stood on
the tarmac as aircraft took members of her unit to
New Orleans. She wrote in an e-mail that it was
the proudest moment of her life. To prepare her
unit, she had reached out to JAG Corps members
all over the country, and they responded. As she
watched the last plane depart, she knew that she
hadn’t done it alone. She wrote of “the incredible
team standing invisibly around” her.
Several senior Air Force leaders have
observed that JAGs enable all military
operations. They note that “if it weren’t for
the things the lawyers do, we couldn’t do the
things the Air Force needs to do.”
Members of the JAG Corps: I am awed by
your service. Daily, you live up to our Mission
Statement: “To deliver professional, candid,
independent counsel and full-spectrum legal
capabilities to command and the warfighter.”
In a very real way, you serve on the front
lines of our Nation’s defense: maintaining
our second-to-none military justice system
that inspires confidence and fosters the good
order and discipline so essential to the mission;
representing Airmen in courts; providing legal
assistance to servicemembers and families in
need; offering sound, ethical advice and guidance
to the civilian and military leaders we serve. You
have the fortitude to tell commanders “no” when
that’s the right answer.
You have put your own lives at risk to help
rebuild the rule of law abroad. In so many ways
and in so many places around the world, you
have played a key role to ensure the advance
of freedom and democracy, grounded in the
rule of law.
You’ve shown that where the JAG Corps is
needed is where we will go, doing whatever it
takes. You never say, “That problem is too hard”
or “No, you can’t do that” and simply walk away.
You never complain, “That place is too far away or
too dangerous, or the hour is too inconvenient.”
The challenges facing the Air Force have been
your challenges, and you do not rest until you
exhaust your imagination and energy to find
legitimate ways to support the mission.
You’ve “been there” whenever and wherever
you’re needed, from the flight lines in Nevada
to the mountains of Afghanistan; from the
courtrooms at CONUS bases to the corridors
of the Pentagon, from Hickam to Langley, from
Beale to Baghdad, from Cuba to Kabul, and
everywhere in between. All of you have played
a part, and I am immensely proud of you. As
Douglas MacArthur observed, you are always on
parade. You lead by example. You’ve answered
the biblical call of “Who would be sent” with a
resounding: “Send me!”
When I was in Kuwait 10 years ago, I visited
their Prisoner of War and Missing in Action
Museum. The curator of the museum was a young
Spring 2010
9

“We stood on the shoulders of those who came before us and took as a sacred trust
our responsibility to prepare, mentor, and groom those who follow.”
man who had studied in the United States for
five years. He went home to visit his family in
July of 1990. Within weeks, Iraqi troops invaded
Kuwait. For six months, he lived in fear. He
saw horrible things. After the war, he dedicated
himself to remembering the people who
had suffered the most. He took me on a
tour of the Museum, and when we finished
he looked me in the eyes and said, “Thank
you.” His thanks were not directed to me
personally, but to me as a representative. He
said that because the American military was
in Kuwait, he had peace of mind and could
go about his daily activities, knowing his
family was safe.
I spoke earlier of things we cannot control.
But we all have choices we can make. For the
important things in life, we can choose what to
do and how to do it.
Four years ago, I took a solemn oath. I
swore that I would “support and defend the
Constitution of the United States,” and that I
would “well and faithfully discharge” my duties
as the Judge Advocate General of the United
States Air Force. I hope the record will reflect that
I always tried to do my best, to do what’s right,
and to treat everyone with dignity and respect.
It has been a privilege and an honor to have
served with you. Although the privilege ends
today, the honor will remain for the rest of my
life. I look forward to learning of your future
successes and the important things you’re doing
for the Nation.
It’s been said that once you put on the
uniform of your country, you can never really
take it off. Soon, I will hang up this uniform for
the last time and put it in the back of my closet.
But in the ways that really matter, this JAG badge
will be where it’s been for the past 33 years: right
here, over my heart.
Marie and I wish each of you and your
families the very best that life has to offer. Thank
you so much for being with us.
10
The Reporter

A WONDERFUL LIFE
THE RETIREMENT OF MAJOR GENERAL CHARLES J. DUNLAP, JR.—THE DEPUTY JUDGE ADVOCATE GENERAL
Gen Carrol H. Chandler, the Vice Chief of Staff of The Air Force, congratulates Maj Gen Dunlap.
The following remarks, which were edited for this publication, were made by Major General Dunlap
at his retirement ceremony at Bolling Air Force Base, D.C., on 19 February 2010.
In preparing for these remarks,
I asked one of our bright young captains,
Captain Nina Padalino, what she thought
company grade officers would be interested in
hearing from me. She replied they would like to
have some advice on whether or not make the Air
Force JAG Corps a career, and what circumstances
helped me make my decision. She continued they
would like to know what I learned when I was a
company grade officer that helped in my career
and, finally, is there anything that I would have
liked to have known back then.
Let me try to tackle just a few of those. I’m
not one of those people who come to something
like this and say, “I have no regrets.” I have lots of
regrets in life. I think anybody that doesn’t have
regrets probably isn’t thinking hard enough about
it. But, I don’t regret the decision to continue to
serve in the Air Force. Why is that The people.
What about the people My theory is you
tend to like people who are happy and the key to
happiness is serving others; and that’s essentially
what servicemen and servicewomen do in the
Armed Forces. So being around people who are
mostly happy, motivated, and working towards
a common goal, is actually a good place to be.
In addition, because service in uniform may
require the ultimate sacrifice, it creates a special
kind of mindset. It’s one where principles mean
something. In the JAG Corps, ours are: Wisdom,
Spring 2010
11

Valor and Justice; and most of our people really
to live up to that. It’s great to be around people
who have values and who stand up for them.
Over the years, I have been privileged
to have been mentored by a great number of
genuinely stand up people. But, let me talk about
some experiences I had as a company grade
officer with one of those people. One of my first
SJAs was a lieutenant colonel everyone knew
as “Mean Henry Green.” He’s quite a legend in
the JAG Corps. He was and is a colorful character
and deserved his “Mean Henry” title. There are
a million Henry Green stories and, although
some of his techniques would be out of
place today, I did learn a lot from him as a
company grade officer.
Let me give you a couple examples. Like a lot
of young JAGs, I got into the bad habit of running
into his office to get a quick and easy answer (for
me anyway!) to some military justice questions.
I think he realized I was getting sloppy and lazy
and decided he was going to put an end to it.
So, one day, when I went into his office, I
barely got my question out, when I looked up
to realize, too late, that “Mean Henry Green’s”
Manual for Courts-Martial was sailing directly
towards my head. And this wasn’t the nice
skull-friendly paperback version. This was
heavy bound version of the manual. Just before
it impacted, I remember him saying to me, and
I’m leaving out a few of the words, “Dunlap, read
this damn book! There is a dangerous amount
of information in there.” I did, and it made all
the difference.
He was teaching me that the tedious process
of self-education and self-reliance was essential
to success. But don’t think that he left any of the
young captains adrift. He truly cared. He spent
untold hours one-on-one and in groups, teaching
us, not just about the practice of law, but about how
to be an officer. He insisted that the young captains
learn everything about the Air Force. He made us
understand we were part of a larger team; the Air
Force and the Armed Forces of the United States.
He was a voracious reader of history. And let
me tell you, in the course of my career, if there’s
one thing that’s made a difference, it’s the fact
that I like to read. I’ve read everything I can about
military history, the Air Force, strategy, and the
other services. So I simply can’t emphasize how
important that lesson was for me and my career.
Let me tell you about another example that
stayed with me all these years. I remember
one time when we actually recommended
dismissal of charges against some Airman
because of insufficient evidence. We were a very
prosecutorial-oriented office, so this was a very
unusual circumstance.
The recommendation enraged the accused’s
commander, who was this gigantic full colonel.
He got Lieutenant Colonel Green in the parking
lot after work and read him the riot act. He
told Colonel Green, “your career is over, you’re
done, you’re finished, get out of here.” I’m
leaving out some words there. This was an era
where young captains were not exposed to that
kind of spectacle from senior officers. So, it was
really unusual.
I can clearly remember Lieutenant Colonel
Green standing there holding his ground telling
him, “Colonel, you can do whatever you want,
but I’m not changing my mind.” It was really
quite something to see. And afterwards, when I
talked to “Mean Henry” later, he told me simply
that that’s we do as judge advocates. We tell
people what they need to hear, not just what they
might want to hear. He taught me earlier on about
the importance of speaking truth to power.
In the years since that event, I’ve found that
speaking truth to power can sometimes come at
personal costs. But, I’ve always thought of “Mean
Henry Green’s” example. As the Reverend Billy
Graham once said, “Courage is contagious when
brave men take a stand. The spines of others are
stiffened.” “Mean Henry” stiffened my spine on
more than one occasion ….
Getting back to Captain Padalino’s questions,
there’s more to why I stayed. It was the
opportunity for adventure. It was wonderful to
be a young single captain traveling around Asia
and Europe. I’m not going to tell you any stories
from those travels. (My wife is here!). There is one
more story that I will relay. Although it isn’t from
my company grade days, it may illustrate how
military service can create memories that really
are almost impossible to obtain otherwise.
12
The Reporter

Having a “life” means
having the opportunity to serve.
It is challenging yourself over
and over again. It is to have
adventure after adventure.
I can well remember my first deployment
for Operation PROVIDE RELIEF/RESTORE
HOPE. It was during Christmas, and most of the
headquarters element to which I was assigned
were Marines. The operation was an urgent
one. There were thousands of people dying as a
result of a civil war; the sheer chaos of a violent,
imploding country dominated by squabbling
warlords. A drought had destroyed crops. I saw
some terrible things during that deployment
and even just thinking about the smell of rotting
bodies makes me gag.
But, Christmas was a respite from what we
were seeing in Somalia. The Kenyan priest said
Mass in a tent on our little compound. His accent
was strong, but his energy really communicated.
There was a Christmas party. Despite the 90
degree heat, someone dressed up in a Santa
outfit and asked what we wanted for Christmas.
Well, don’t ask a bunch of people deployed what
they want for Christmas. Everybody wants to go
home! But it was a lot of fun.
The most memorable part was Christmas
dinner. It was set up outside under a dazzling,
clear, African night. Believe me, in that part of
Africa, there isn’t much competition for the stars
by artificial light. Our African food contractors
often served us gazelle and other kinds of weird
food, but, for that particular night, the menu they
came up with was Italian food. At the dinner,
kind of ironically, some Germans joined us. They
were deployed with us for that operation. In fact,
it was the first time they had served in Africa
since Rommel was there.
Somebody arranged to have an African band
to play. They knew a lot of African music, which
was interesting, but not exactly seasonal for most
of us. In fact, the repertoire of U.S. tunes seemed
to be nonexistent until, that is, they got to the
very last one. Completely unexpectedly, they
started playing one piece of music familiar to all
Americans: Amazing Grace.
It struck me then, and it still strikes me now,
what a wonderful life the military can be. There
I was a Philadelphia lawyer, in Africa, eating
Italian food with a bunch of Marines and some
Germans, listening to Amazing Grace—and all
outside under a spectacular Christmas night sky.
What an adventure!!!
Life can be strange. When I first put on the Air
Force uniform in 1970, I never envisioned myself
ending up where I was that day in Africa or in
the years to come. I treasure those memories. I
have always believed that serving in the military
is not just a living, it’s having a life. There is a
difference. It’s a life, when you look back on it,
that means something.
So, I guess the best answer to the question
young Captain Padalino posed to me about why
stayed in is to pose a question back. When you’re
going to be, as I will be on my next birthday, 60
years old, what do you want to look back on
And as for me, I can’t speak for anyone else, but
having a “life” means having the opportunity to
serve. It is challenging yourself over and over
again. It is to have adventure after adventure.
And it’s to have the privilege to meet and work
with people who are so terrific and wonderful.
So, Captain Padalino’s final question was:
Is there anything that I wish I had known then
that I know now Well, there is. I wish I knew
that I was going to meet my wife, Joy. Knowing I
would meet her would have made my social life
a lot easier. It would have taken a lot of stress out
of being a young captain!
In closing, let me just say, it’s been a
wonderful life. It’s been a wonderful life because
of many of the people who are here. You have
made our life a wonderful life. We hope, in
the future, we will be able to continue our
relationships with you because Joy and I have
nothing but good feelings about our Air Force
career. We are really looking forward to the next
phase of our lives.
Still, the shadows are lengthening for us. We
hope to continue to try, as we always have tried,
to do our duty as God gives us the light to see thy
duty. Thank you so much.
Spring 2010
13

The
Finest
Professionals
During her tenure as the senior paralegal manager to TJAG, Chief Master Sergeant
Debbie Stocks spearheaded the Utilization and Training Workshop which led to major
career field improvements, to include the implementation of electronic training records
career-field wide and vastly improved training and education of the entire paralegal force. A true
visionary, she conducted the first-ever Paralegal Utilization Horizons session which provided
valuable feedback for the future of the paralegal career field. Chief Stocks’ exemplary foresight
to see attorneys and paralegals working side-by-side in all areas of the law, led to full integration
of training between judge advocates and paralegals at the Judge Advocate General’s School. This
vision led to the successful utilization of paralegals worldwide
and has forever changed the contributions to the Judge Advocate Each and every paralegal
General Corps’ mission the enlisted force has offered and will has the ability to take on
continue to offer for generations to come. Chief Stocks has left more challenging roles
a legacy as she moves on to the next phase of her life; here is an and responsibilities.
excerpt of her retirement remarks.
14
The Reporter

The following remarks, which were edited for this publication, were made by Chief Stocks at her retirement
ceremony on 12 February 2010 at the Women In Military Service for America Memorial in Washington, D.C.
FROM MY FIRST DAYS ON THE
FLIGHT LINE at Nellis Air Force Base
to today at the Pentagon, I still find myself
in awe of the opportunities I have been given and
the fact that I get paid to do this!
I have been blessed to work with the
finest professionals on the face of this earth,
and along the way, I’ve made lifelong friends.
That’s really what it’s all about. It’s not about the
work that we do—although it is important—it
really is about the relationships we build over
the years.
As we talk about taking care of Airmen, I
would ask each and every one of you to think
about the Airman behind the uniform on both
sides—both you and them. Never get so caught
up in your rank or position that you lose sight
of the fact that we are all in this together and
we need each other. Get out from behind your
desk and computer and talk to people. Get to
know what makes your peers, subordinates and
superiors tick. You’ll be amazed at what you’ll
learn—not only about them, but about yourself.
Looking back, of course, you only remember
the good things. But honestly, I think I can count
the number of “bad” things I’ve experienced
on two hands. For the most part, the tough
experiences make us stronger because they truly
test our mettle. And somehow, you can always
find something good, even from the bad days. As
I look ahead, I see great things for the JAG Corps
and especially, our paralegals. We have been
struggling for as long as I can remember to find
our niche in the Corps. I’ve said it before and will
continue to say it—the future is in our own hands.
Each and every paralegal has the ability to take
on more challenging roles and responsibilities. I
am beyond excited when I see our newest JAGs
and paralegals working together. Continue to
move forward!
It has been an awesome ride, and I thank you
for letting me be your Chief!
Chief Stocks salutes Major General Dunlap after receiving the Legion of Merit.

CHASTISING PIRATES
An Operations Law Challenge
Members of Combined Task Force 151 (CTF 151) head back after disabling a suspected pirate skiff
U.S. Navy photo by Petty Officer First Class Cassandra Thompson
By Lieutenant Colonel Theodore Vestal, USAFR & Colonel Albert Klein, USAF
On 11 April 2009, snipers from
U.S. special forces aboard the U.S.S.
Bainbridge 1 terminated the seizure
of a U.S.-flagged commercial vessel MV Maersk
Alabama by killing three Somali pirates and
capturing a fourth. 2 Even with its successful
resolution, the incident serves as a stark reminder
of the global security threat posed by modernday
piracy—most noticeably in the waters off the
Horn of Africa and the Straits of Malacca, but also
across West Africa, India, the South China Sea, and
the Caribbean.
THE THREAT ON THE HIGH SEAS
Pirates naturally operate in waters with large
coastal areas and small national police or naval
forces, with high levels of commercial shipping,
and weak regional or collective security. These
environments facilitating piracy further enable
other maritime threats including terrorism,
smuggling of arms and drugs, illegal fishing,
dumping of toxic and other wastes, and human
trafficking. Outflows of refugees and immigrants
escaping dire economic and security situations
increase the potential for conflict in these areas.
1
In an ironic twist, this ship is named after Commodore William Bainbridge, a veteran of
the Barbary pirate campaigns.
2
The Discovery Channel produced a documentary of the event entitled Somali Pirate
Takedown: The Real Story, including actual film footage, interviews with crew members,
and detailed graphics, available at http://military.discovery. com/pirates/pirates.html.
Nor are Western powers immune from acts of
piracy and other criminal endeavors on the high
seas. In August 2009, the freighter Arctic Sea
vanished for two weeks after being hijacked off the
Swedish coast (or possibly in the English Channel),
only to reappear off west Africa, thousands of miles
from its intended destination of Algeria. Russian
forces retook the ship after the band of pirates
from the Baltic region and Russia threatened to kill
the crew and sink the vessel.
Mysterious circumstances still surround the
hijacking, including the lack of a distress call, a
demand for ransom, and action by Russian military
forces, which fueled speculation that the Arctic Sea
was carrying nuclear material or weapons rather
than its stated cargo of lumber. 3 The event highlights
the potential for piracy to evolve into a means to
acquire or employ weapons of mass destruction.
Most vessels under attack have less than 15
to 30 minutes between the first sighting of the
pirates and their boarding of the ship and taking
of hostages. 4 Naval combatant ships can steam at
speeds of up to 30 knots (speeds of 20+ knots might
3
Lynn Berry, Ship location kept quiet to protect hijacked crew, Associated Pre s s, 18 Aug.
2009, available at http://www.washingtonpost.com/wp-dyn/content/article/2009/08/18/
AR2009081800407.html.
4
Congressional Research Service, Report for Congress: Piracy Off the Horn of Africa, at 8
(Apr. 24, 2009), available at http://www.fas.org/sgp/crs/row/R40528.pdf.
16
The Reporter

e more likely), so unless a naval ship happens to
be a few miles away when a commercial ship comes
under attack, it won’t arrive until after (perhaps
long after) the 15 to 30 minute window has come
and gone. The large area of water to be patrolled by
the relatively small number of naval ships available
means that the closest naval ship is often too far
distant to arrive within that timeframe.
Piracy based in Somalia exemplifies this
challenging environment. Several groups of
sophisticated pirates operate in Somali waters
according to reports from the United Nations
Secretary General and his Special Representative
for Somalia. Organized predominately along
clan lines and based in distinct and separate port
towns along the lengthy Somalia coastline, the
pirate groups have varying capabilities and patterns
of operation, making generalized responses
difficult. The Secretary General warns that
some of the pirate groups now rival established
Somalia authorities in terms of military capabilities
and resource bases. 5 The range of Somali based
pirates extends through the Gulf of Aden and deep
into the Indian Ocean resulting in an operating
area covering over a million square miles.
Pirates in Southeast Asia range throughout
the archipelagos of Indonesia, Malaysia, the
Philippines, and beyond.
THE LEGAL FRAMEWORK
The United States has enjoyed a long and
colorful history employing military power against
piracy—most famously in the war against the
Barbary pirates on “the shores of Tripoli”
memorialized in the Marine Corps hymn. Further,
the U.S. Constitution provides legal authority
to “punish” pirates. Article 1, Section 8 of the
Constitution gives Congress “the Power … To
define and punish Piracies and Felonies committed
on the high Seas, and Offenses against the Law of
Nations.” A little-known yet significant Presidential
order directing U.S. Naval and Marine forces in
1832 to “inflict chastisement” on pirates operating
in the Straits of Malacca resulted in the destruction
of four pirate forts guarding the town of Kuala
5
The Secretary-General, Report of the Secretary-General pursuant to Security Council
Resolution 1846 (2008), S/2009/146 (Mar. 16, 2009); and International Expert Group
on Piracy off the Somali Coast, Final Report: Workshop commissioned by the Special
Representative of the Secretary General of the UN to Somalia Ambassador Ahmedou Ould-
Abdallah (Nov. 10-12, 2008).
Batu (then known as Quallah Batoo). The town
itself was reduced to ashes. 6
Present-day U.N. Security Counsel Resolutions
(numbers 1816, 1838, 1846, and 1851) issued in
2008 facilitate an international response to piracy
off the Somalia cost. Resolution 1851 authorizes
international naval forces to engage in anti-piracy
operations in Somali territorial waters and ashore.
In January 2009, a multilateral Contact Group 7 on
Piracy off the Coast of Somalia was established to
coordinate anti-piracy efforts. 8
Resolution 1816 (June 2008) authorized states
cooperating with the Somalia Transitional Federal
Government (TFG) to “enter the territorial waters of
Somalia for the purpose of repressing acts of piracy
and armed robbery at sea.” The initial Resolution
lasted only six months, but Resolution 1838
(October 2008) called on states with military
capacities in the region to contribute to antipiracy
efforts, and the authorization established in
Resolution 1816 was extended for another twelve
months by Resolution 1846 (December 2008).
Resolution 1851 expanded this authorization
to “undertake all necessary measures that
are appropriate ‘in Somalia’ for the purpose of
suppressing acts of piracy and armed robbery
at sea.” 9 Based on Resolution 1851, the Bush
administration led the formation of a federation
of twenty-four member governments and five
regional and international organizations with the
goals of sharing investigative and surveillance
information and strengthening the legal
framework to prosecute pirates. 10
6
M. Al m y Al d r i c h, Hi s t o r y o f t h e Un i t e d States Ma r i n e Co r p s 68 (1875), available at http://
openlibrary.org/b/OL7164354M/History_of_the_United_States_marine_corps ….
7
The US Department of State Official Blog defines a Contact Group as a kind of diplomatic
“pick-up” team—28 countries and six international organizations (the African Union, the
Arab League, the European Union, the International Maritime Organization, NATO, and the
UN Secretariat) who have created an informal forum to share information and coordinate
efforts against piracy. The Contact Group gives countries a new way to come together
to creatively use what Secretary Clinton calls “smart power” to coordinate a broad range
of diplomatic and security efforts to confront piracy in the short to medium term, while
parallel international development initiatives to bring stability to Somalia continue in other
multilateral bodies, such as the United Nations International Contact Group on Somalia,
available at http://blogs.state.gov/index.php/entries/counter-piracy_contact_group/.
8
Piracy Off the Horn of Africa, supra note 4, at 19.
9
Id.
10
Id. at 16.
Spring 2010
17

REGIONAL EFFORTS
A number of efforts intended to track and reduce
the effects of piracy have been implemented
in recent years. The “Regional Cooperation
Agreement on Combating Piracy and Armed
Robbery Against Ships in Asia” (ReCAAP), went
into force on 4 September 2006. The nations that
have signed on for ReCAAP include Cambodia,
Japan, Laos, Singapore, Thailand, Philippines,
Burma, South Korea, Vietnam, India, Sri Lanka, and
Brunei. 11 ReCAAP is the first regional governmentto-government
agreement to combat piracy and
armed robbery against ships in Asia. Among the
initial steps taken was setting up a permanent
multi-nationally-staffed “Information Sharing
Centre” (ISC) in Singapore. ReCAAP supplements
earlier agreements among Singapore, Malaysia,
and Indonesia to combat piracy in the Straits of
Malacca (SOM).
Although the U.S. Pacific Fleet had a role in
promoting both the SOM and ReCAAP projects
as examples of “Regional Maritime Security”
consortia, there is no direct American role in the
program. But given the constant and widespread
presence of the U.S. Navy in the region, there
will likely be informal U.S. participation in these
anti-piracy programs. Additionally, NATO, the
European Union, the International Maritime
Organization (IMO), and IMO-sponsored groups
have all taken steps to address piracy. 12 In April
2009, NATO reported that alliance warships
and helicopters foiled an attack on a Norwegian
tanker by Somali pirates in the Gulf of Aden. 13
Unfortunately, a Belgium tanker in the vicinity
vanished.
THE U.S. RESPONSE
Combined Task Force (CTF) 151 was established in
January 2009 with the sole mission of conducting
anti-piracy operations in the Gulf of Aden and the
waters off the Somali coast in the Indian Ocean.
That role had previously been filled by CTF 150,
which continues to perform counterterrorism and
11
RECAAP Press Release, Feb. 27, 2009, available at http://www.recaap.org/news/pdf/
press/2009/Press%20Release-3GC%20Mtg.pdf.
12
U.S. Department of State, Office of the Spokesman, Policy Statement: Contact Group on
Piracy Off the Coast of Somalia, Jan. 14, 2009, available at http://www.marad.dot.gov/
documents/POLICY_STATEMENT_for_Contact_Group_on_Piracy_off_Coast_of_ Somalia.
pdf.
13
NATO Ships, Helicopters, Foil Pirate Attack, CBS Ne w s On l i n e, Apr. 19, 2009, available at
http://www.cbsnews.com/stories/2009/04/19/national/main4954691.shtml.
other maritime security operations as it has since
2001. In August 2008, CTF 150 and partner forces
agreed to the establishment of a maritime security
patrol area (MSPA) in the Gulf of Aden to serve as
a dedicated, more secure transit zone for merchant
vessels. The MSPA has been credited in part
with lowering the success rate of Somali pirates
in the Gulf of Aden transit zone. 14 As of March
2009, CTF-151 consisted of personnel and nearly
two dozen ships from the United States, United
Kingdom, Canada, Denmark, France, Germany,
Greece, Italy, Malaysia, Netherlands, Saudi Arabia,
Spain, Turkey, and Yemen. Countries expected
to participate in the near future include Bahrain,
Jordan, Japan, Singapore, South Korea, Sweden,
Belgium, and Poland. Three countries, Russia,
China, and India, have deployed naval forces to the
region to participate in monitoring and anti-piracy
escort operations. While these three nations do not
formally and fully coordinate their policies with
CTF-151, there are ongoing communication efforts
to increase cooperation.
THE USE OF AIR POWER
The legal framework for airstrikes against pirates
stems from the U.S. Constitution—to punish
piracies—and U.N. Resolution 1851, which
contains diplomatically-phrased language to
take “all necessary measures.” Four specific air
power missions are suggested here to address
modern piracy.
First is the overlying need for intelligence,
surveillance and reconnaissance (ISR) to prepare
the battlespace for successive missions. ISR may
extend far beyond the battlespace and into, for
example, surveillance of businesses or individuals
suspected of assisting pirates to select target
vessels based on cargo, time of passage, or
nationality of flag.
Second is an immediate tactical response to
prevent pirates from seizing a vessel or crew. Such
armed response requires extremely fast action, as
the window of opportunity shuts in approximately
15 to 30 minutes.
Third is a loiter capability used subsequent to
pirates seizing a vessel or crew. This mission would
include elements of ISR and tactical response, as
14
Piracy Off the Horn of Africa, supra note 4, at 19.
18
The Reporter

it will include monitoring of the seized vessel or
crew and waiting for the unlikely opportunity to
strike back.
Fourth is a preemptive or punitive strike at
known pirate cities, ports, vessels, or individuals.
Preemptive and punitive strikes may blur into one
and the same; for example, intelligence gathered
after a seizure may be used to punish those
pirates responsible, and at the same time prevent
a recurrence from being launched by the same city,
port, vessel, or individual.
Helicopters have occasionally exhibited
success against pirate attacks. In May 2009, a
Korean navy destroyer called Munmu the Great
launched a helicopter to ward off an attack by
Somali pirates against a 74-ton Egyptian-flagged
vessel transiting through the troubled Gulf of Aden
region. Once airborne, the Korean aircraft joined
with a U.S. helicopter and used gunfire to turn
the pirates away. Although this is the first time a
Korean helicopter has reportedly teamed with a
U.S. helicopter to thwart an assault against a ship
at sea, it is the fourth time assets of the Korean navy
have engaged pirates. The previous times were in
defense of vessels registered in Denmark, Panama,
and North Korea. 15
LAW OF ARMED CONFLICT (LOAC) ISSUES
Careful crafting of any operation order for the use
of military power or rules of engagement (ROE)
will be necessary to avoid potential LOAC
violations. As Vice Admiral Kevin J. Cosgriff
(Ret.), the former Chief of Naval Forces in U.S.
Central Command noted in a speech to the Middle
East Institute, one of the most difficult issues will
be that of identification and differentiation of
pirates. Positive identification (PID) of targets is of
paramount importance because there is a minimal
chance of identifying a pirate as a pirate unless
the individual is caught red-handed in the act of
seizing a vessel or crew. As The Economist magazine
noted, “Just owning piratical kit [equipment or
gear] may not be enough.” 16
15
Korean/U.S. Helicopters Ward Off Pirates, Aviation To d a y, May 15, 2009, available at http://
www.aviationtoday.com/rw/topstories/KoreanU-S-Helicopters-Ward-Off-Pirates_32133.
html.
16
Piracy: Wrong signals. Confusing laws hamper international naval efforts to fight piracy,
May 7, 2009, Th e Ec o n o m i s t, available at http://www.economist.com/world/international/
displaystory.cfmstory_id=13610785&fsrc=rss 85.
DOD photo by Mass Communication Specialist First
Class Eric L. Beauregard, U.S. Navy
PID reiterates the law of war obligation
to discriminate between combatants and noncombatants.
This works well when the enemy
complies with the law of war by wearing fixed
insignia recognizable at a distance. It is rarely
possible when fighting civilian-belligerents.
Counterinsurgency force employment
decisions are almost always based on conduct,
even when mission-specific ROE declare the enemy
insurgent, terrorist, or guerrilla group hostile. 17
The same positive identification requirement will
be applicable to antipiracy endeavors, made all
the more necessary by the vastness of the world’s
oceans and legitimate human activity occurring on
those oceans.
Lacking PID, costly mistakes are sure to occur.
In a tragic case of mistaken identity, forces of
the Indian navy attacked what it thought was a
pirate mother ship, only to discover afterwards
that the targeted ship was an innocent Thai
commercial trawler. 18
UNINTENDED CONSEQUENCES
Commanders and their planners must take into
consideration the extent of unintended indirect
civilian destruction and probable casualties that will
result from a direct attack on a military objective
and, to the extent consistent with military necessity,
seek to avoid or minimize civilian casualties and
destruction. Anticipated civilian losses must be
proportionate to the military advantages sought.
Legal, intelligence, and operations personnel
play a critical role in determining the propriety of
17
Commander Albert S. Janin, Engaging Civilian-Belligerents Leads to Self-Defense/Protocol I
Marriage, Ar m y La w., July 2007.
18
Piracy Off the Horn of Africa, supra note 4, at 9.
Spring 2010
19

Heavy-handed policies
could have the unintended
consequence of driving
pirates into the arms
of terrorists.
U.S. Navy photo by Petty Officer First Class
Cassandra Thompson
a target and the choice of weapon to be used under
the circumstances known to the commander when
planning an attack. This, then, is what is known
as collateral damage in the physical or traditional
sense—the killing of innocents and the destruction
of non-military property. But a new form of
collateral damage or unintended consequences
may arise as piracy evolves.
So far, any link between piracy and terrorists
appears weak. However, heavy-handed policies
could have the unintended consequence of driving
pirates into the arms of terrorists. Likewise,
because many nations have a vested interest when
a ship is hijacked it is often unclear who should
prosecute captured pirates. The inability of Somalia
to prosecute its own pirates creates numerous
legal complications for the outside states that are
conducting antipiracy patrols in the Gulf of Aden. 19
Whether a specific country can prosecute pirates
will depend on its own laws, where pirates are
found, the nationality of the arresting ship,
the nationality of the arrested pirates, and
circumstances in which they are arrested. “There
is a different response available in almost every
case,” according to Rear Admiral Philip Jones, who
heads the European Union’s piracy task force. 20
Some nations have released captured pirates
back into Somalia because they could not find
an appropriate international venue to prosecute
19
Stepanie Hansen, Combating Maritime Piracy, Co u n c i l o n Fo re i g n Re l a t i o n s, Jan. 7, 2010,
available at http://www.cfr.org/publication/18376
20
Oliver Hawkings, What to do with a captured pirate, BBC Ne w s , Mar. 10, 2009, available at
http://news.bbc.co.uk/2/hi/7932205.stm
or lacked sufficient evidence to meet a certain
country’s legal standards. 21
Clearly the best long-term strategy for
combating piracy is a capable coast guard force
(who can act both inside and outside a country’s
territorial waters and has the legal authority to
search and detain forces … where most military
ships and crews do not have that authority nor
the skill set to achieve this mission). As a recent
article from the Council of Foreign Relations
points out, ”Experts unanimously stress that
the only effective long-term piracy deterrent is a
stable state. When Somalia was briefly under the
control of the Islamic Courts Union in 2006, piracy
stopped completely.” 22
Heavy-handed policies may further alienate
an entire population considering whether to
harbor pirates and make that population the friend
of our enemy. Alliances are formed for various
reasons, but a common theme among tribal entities
appears to be, “[t]he enemy of my enemy is my
friend.” Accordingly, it would be no surprise
for pirates and terrorists to join forces against a
common enemy. Additionally, as the Wall Street
Journal noted, military intervention could also have
economic repercussions on the shipping industry. 23
21
Id.
22
Hansen, supra note 19.
23
Chip Cummins, John W. Miller, and Sarah Childress, Rescue at Sea Sparks Calls for
Firepower: Shipping Groups Applaud Military Action; Obama Says U.S. Will Work With
Allies to Fight Piracy, Wa l l St. J., Apr. 14, 2009, available at http://online.wsj.com/article/
SB123962637556913367.html.
20
The Reporter

Insurance rates are already higher due to piracy
attacks and could further escalate based on the
possibility of lethal firefights between pirates and
navies. Companies may also choose longer, more
expensive routes to avoid piracy hot spots.
RETALIATION AND ESCALATION
The use of force against Somali pirates has
raised the prospect that revenge may become a
motivating factor for pirates whose associates are
killed or captured. For example, the 14 April 2009
attack on the U.S.-flagged MV Liberty Sun allegedly
was undertaken with the intent of damaging or
sinking the vessel and capturing or killing the
crew in retaliation for the pirate deaths suffered at
the hands of U.S. snipers on the Bainbridge. 24 The
world may see a change in a force of what was
essentially (dis)organized crime into a fighting
force targeting Americans. Nevertheless, groups
such as the Council of American Master Mariners
are calling for more military action, not less. 25
FINAL TAKEAWAYS
There is no one-size-fits-all solution available to
counter piracy. All instruments of national power,
including military options, remain on the table.
Consequently, close interagency cooperation
will be required to develop solutions and resolve
issues, as exemplified in the successful rescue of
the Maersk Alabama. In weighing military action
against pirates, commanders must consider their
actions in a comprehensive and thorough manner
in order to implement intended effects on targets
and manage unintended consequences. The
complexities and nuances of antipiracy operations
24
Piracy Off the Horn of Africa, supra note 4.
25
Rescue at Sea Sparks Calls for Firepower, supra note 23.
U.S. Navy photo by Mass Communication Specialist
First Class Elizabeth Allen
also present real challenges for an operations lawyer
providing advice on ROE and PID. Judge advocates
may be called upon to offer a position that kinetic
means are not necessarily the final solution. A solid
understanding of a potential target’s background
is a must, to include a pirate’s operating location
and surrounding tribes or clans, their harboring
population(s), potential allies and enemies, and
their ability to obtain and use insider information
about ships’ cargo, route, and sailing times.
The potential results of any proposed military
action should be projected outward to a reasonable
degree of extension beyond kinetic effects. This
requires commanders and their legal advisors to
question whether a potential military response will
likely result in further challenges to the operations
theater, not fewer. Just as the United States has been
chastising piracy since the battles along the shores
of Tripoli, long range solutions should be sought
instead of short-term fixes that ultimately fail to
secure the high seas.
Lieutenant Colonel
Theodore Vestal (B.A.,
Austin College; J.D.,
University of Oklahoma;
LL.M., University
of Houston) is an
individual mobilization
augmentee attached
to Thirteenth Air Force
and recently served in
Central Command (CENTCOM).
Colonel Albert Klein (B.A.,
Kent State; J.D., University
of Akron; M.S., Troy
State University; LL.M.,
Georgetown University)
recently retired after
serving as the Staff Judge
Advocate, Thirteenth
Air Force and has been
involved with numerous air
operations events, including deployments to
the Combined Air Operations Center (CAOC)
in CENTCOM.
Spring 2010
21

Kelly
Who
Refreshing the JAG Recollection on
the Media, the Air Force, and the
First Court-Martial of Public Opinion
by Major Jeffrey G. Palomino, USAF
On 21 May 1997 Air Force
Chief of Staff General Ronald
R. Fogelman testified before the
Defense Subcommittee of the Senate Armed
Services Committee. A tough, no-nonsense
fighter pilot, General Fogelman had become the
Chief three years earlier with the charge to restore
accountability to an Air Force that had lost sight
of its core values. 1 The scheduled testimony was
the budget and the impact to the Air Force of the
recently published Quadrennial Defense Review. 2
1
Dr. Richard H. Kohn, ed., The Early Retirement of Gen Ronald R. Fogelman, Chief of
Staff, United States Air Force, Ae ro s p a c e Po w e r J., Spring 2001, at 10. General Fogelman’s
full comments were as follows: “When I became the chief, I received a number of letters
from people like you who essentially said that they thought the chief needed to restore
the soul of the Air Force. That caught me somewhat by surprise because I was not sure
exactly what the soul of the Air Force was, or what was required to fix it. But my conclusion
was that somehow we had found ourselves, or allowed ourselves, through a series
of decisions and actions, to lose sight of our values. The trouble came not from some
overriding set of principles, but more from employing situational ethics (i.e., cronyism
and other things) that made it seem as though the institution lacked integrity. So in the
back of my mind, there seemed to be a necessity, or charge if you will, to work this issue
on my watch.” Id. Notably, he gave this comment after his resignation and in response to
Dr. Kohn’s question, “General Fogelman, why did you decide to ask for early retirement”
Id.
2
Hearing of the Defense Subcommittee of the Senate Armed Services Committee, FY 98
Defense Appropriations, 105th Cong., 1st Sess., 1 (1997) [hereinafter Hearing].
When the time came for Senator Tom Harkin
(D-Iowa) questions the hearing took a decided
turn. Senator Harkin didn’t ask about the F-22,
the Joint Strike Fighter, or base realignment
and closure, but about a court-martial at Minot
Air Force Base, North Dakota. He wanted to
know about the Kelly Flinn case. With a basis
of knowledge admittedly informed by media
coverage, Senator Harkin expressed indignation:
“General, how many attorneys do you have in the
Air Force running around trying to find out how
many people are committing adultery” 3
BACKGROUND
The case against First Lieutenant Kelly Flinn
formally began with preferral of four charges
on 28 January 1997. 4 What was unique about the
3
Id. at 25.
4
Colonel Jack L. Rives, The Case Against Lieutenant Kelly Flinn, Th e Repor ter, Dec. 1997,
at 6. The charges were fraternization (i.e., Flinn had a sexual relationship with a single
enlisted man), adultery with an enlisted airman’s husband, false official statement, and
violation of her commander’s no-contact order. Most would agree that the charges were
hardly unique to the military justice system, nor are they unique now. Interview with
Lieutenant General (Retired) Jack L. Rives, Former Judge Advocate General of the Air
Force (16 Mar. 2010) [hereinafter Rives Interview].
22
The Reporter

case and what makes it seminal in Air Force
history was the media blitz that followed the
charges, paralyzed the Pentagon, and
persuaded the Secretary of the Air
Force to give Flinn a general, under
honorable conditions administrative
discharge in lieu of a court-martial. 5
In United States v. Flinn the Air
Force was “out-flanked” by strategic
media campaign that radically shifted
public opinion against the Air Force. 6
Flinn’s “brilliantly innovative public
defense” was the first of its kind in the
Air Force. 7 Unfortunately, this landmark
case sits outside the corporate memory
of most judge advocates.
The facts of Flinn’s case are straightforward.
Flinn graduated from the Air Force Academy,
finished at the top of her class in B-52 flight training,
and appeared in Air Force promotional videos.
Assigned to Minot in the fall of 1995, she was the
first female B-52 pilot in the Air Force. In June 1996
the Air Force selected her to fly the Secretary of the
Air Force Sheila Widnall in a B-52 demonstration
flight. 8 That same month Flinn had sex on two
occasions with an enlisted man at Minot. 9 In July
she began a sexual relationship with Marc Zigo,
someone she knew was the husband of an airman
basic assigned to Minot. Months later Flinn lied
to investigators under oath about the Zigo affair.
She later violated her commander’s order to have
no contact with Zigo. 10
After preferral and the Article 32 hearing,
the Flinn family hired attorney Frank Spinner. A
retired Air Force judge advocate, Spinner had
achieved notoriety as a civilian attorney for
his defense of Aberdeen Proving Grounds drill
sergeant Delmar Simpson and Air Force Captain
5
Interview with Brigadier General (Retired) James W. Swanson, General Counsel &
Corporate Secretary, Military Officers Association of America (10 Mar. 2010) [hereinafter
Swanson Interview].
6
Rives, supra note 4, at 5.
7
Colonel James W. Swanson, Military Justice Under Scrutiny: Exploring the Conflict Between
Society’s Norms and the Military’s Needs, Th e Repor ter, June 1998, at 3.
8
Kelly Fl i n n, Pro u d To Be 152-54 (Random House 1997).
9
Rives, supra note 4, at 5-6.
10
By this time Flinn was living with Zigo off base, an arrangement that continued for
approximately five more weeks after the no contact order. Id.
The idea was to do
a “frontal assault on
the Air Force” with
the shots coming so
fast the “Air Force
would not know
what hit them.”
Jim Wang. 11 Spinner started receiving media
inquiries before he even traveled to Minot to meet
Flinn. 12 His first task was to ask the
Eighth Air Force commander to give
Flinn an Article 15. Spinner told the
commander of the burgeoning media
interest. He advised the commander
that “no one could predict how it
would turn out.” This was not a
threat, but something Spinner felt
the convening authority should
consider. The request for nonjudicial
punishment was denied, and all
charges were referred on 26 February
1997. A few days before referral,
the Air Force issued the first press release of
the case. Flinn read articles about her adultery
in the St. Louis Post-Dispatch and saw a similar story
on CNN Headline News. Although ethically tight,
the release contained factual errors which enraged
Flinn and motivated the defense. 13
THE MEDIA BLITZ
The defense media campaign had one strategic
goal: “to posture the case to get a resolution outside
of court.” 14 To reach this end, the defense worked
along three lines of operation. First, the defense
decided to arrange media stories to hit around the
same time, one to two weeks before the scheduled
20 May 1997 court-martial date. The idea was to do
a “frontal assault on the Air Force” with the shots
coming so fast the “Air Force would not know what
hit them.” Spinner knew this timing would render
the Air Force unable to respond. Second, the defense
wanted to get the story to as many media outlets
as possible. Spinner was helped by the fact that
the Flinn family was well connected, and an uncle
in the family had appeared on 60 Minutes before.
Through this connection the defense contacted the
show’s producers and arranged Flinn’s 11 May
1997 appearance. The defense followed up the 60
11
Fl i n n, supra note 8, at 210. Capt Wang was the AWACS crew member acquitted in the
Blackhawk shoot down case. Id. Notably, each of those clients had appeared on major
network news programs. Interview with Mr. Frank Spinner, Defense Counsel, (16 Mar. 2010)
[hereinafter Spinner Interview].
12
Spinner Interview, supra note 11.
13
The factual errors in the Air Force press release related to the charges. According to Flinn,
“The charges were all wrong: CNN was saying that I’d had an affair with a married enlisted
man.” Flinn also took issue with the fact that neither she nor her squadron commander was
told of the press release. FLINN, supra note 8, at 212.
14
Spinner Interview, supra note 11.
Spring 2010
23

SJAs must aggressively anticipate
media interest in military justice
cases and other legal issues.
Photo by Bartlomiej Stroinski
Minutes segment with Monday morning talk show
interviews with Flinn family members. The defense
surrounded this coverage with sympathetic stories
in The Washington Post, the New York Times, and
USA Today. This was “target marketing” of the
legislative audience, a liberal demographic, and
the business traveler market. Third, the defense
reset its own message, which it framed through
the adultery charge. The message was Flinn was an
innocent victim who had made naïve mistakes of
the heart. Now, “this pioneer was being persecuted
by an Air Force of old men applying old men’s
morals on a new generation.” 15
The defense media assault blindsided the Air
Force. Although it had media plan for the case,
“much of it centered on providing information as
the case unfolded judicially.” 16 When the case
began to unfold outside the courtroom the Air
Force clammed up and stiff-armed reporters with
“no comment.” This “left a news vacuum that the
Flinns were only too happy to fill” and the Air
Force image took a beating. 17 Later, when the Air
Force finally did choose to say something, it badly
misstepped. 18 This added to the perception that
the Air Force was mistreating Flinn. Ultimately,
15
Swanson Interview, supra note 5.
16
Colonel Jack L. Rives, Who You Gonna Call AFPAZ! An Overview of the Air Force Executive
Issues Team, Th e Repor ter, Dec. 1999, at 19.
17
Tony Capaccio, The Kelly Flinn Spin Patrol, Am e r. J. Rev. (Sept. 1997), available at http://
www.ajr.org/Article.aspid=2258.
18
Swanson Interview, supra note 5. The best example of this is the official Air Force
response given during the 60 Minutes feature. The person chosen to respond was Col Bob
Reed, a judge advocate in charge of the Air Force’s military justice division. Unfortunately,
the Air Force put so many constraints on Colonel Reed that he ended up looking ill-prepared
and evasive in response to the reporter’s questions. Id.
the defense’s plan achieved the desired end state.
Lieutenant Flinn’s discharge was approved on 22
May 1997.
LESSONS LEARNED
The Flinn case leaves lessons for legal offices today.
First, legal offices must aggressively anticipate
media interest in military justice cases and other
legal issues. This is true even more today than it was
in 1997. 19 The media today runs at an accelerated
pace. 20 Created by a reliance on the Internet, the
surplus of media outlets, and advancement in
technology, this frantic pace not only speeds up
reporting of the news, but also how quickly the
public forms opinions to news. 21
Added to this mix are social media such as
Twitter, Facebook, and blogs that effectively leave
“no secrets.” 22 To operate in this environment, legal
offices must identify media-worthy cases early.
Key factors to consider include immediacy of the
issue, proximity, prominence of the accused, oddity,
conflict, suspense, emotional appeal of the case, and
sex or scandal. 23 Just imagine the potential impact
that a Kelly Flinn blog would have today.
19
Colonel Morris D. Davis, Effective Engagement in the Public Opinion Arena: A Leadership
Imperative in the Information Age, Air & Sp a c e Po w e r Ch r o n. On l i n e J., (5 Nov. 2004), available
at http://www.airpower.maxwell.af.mil/airchronicles/cc/davis1.html.
20
Philip Seib, Be y o n d Th e Fr o n t Li n e s 12 (Palgrave MacMillan, 2004).
21
Id.
22
Swanson Interview, supra note 5.
23
U.S. Air Force Public Affairs Center of Excellence, Meeting Th e Me d i a: A Po c ke t Gu i d e To Assist
Ai rm e n In Co m m u n i c a t i n g With Th e Ne w s Me d i a 15-16 (2008). Most journalists agree these factors
are the key elements of “news.” Immediacy is defined as something that has just happened
or is about to happen. Proximity means the closer to “home” the better. A prominent case
24
The Reporter

CREATING A MEDIA PLAN
The second lesson is that legal offices must put
together a media plan early that can respond to
wrong or misleading information. 24 This should
be done parallel to, and with the same emphasis
as, trial counsel’s preparation of the case. Do not
assume that if the Air Force says nothing or does
not cooperate that the story will go away. 25 In
2008 lecture at the Air War College, 60 Minutes
correspondent Scott Pelley remarked, “There’s an
immutable law of the universe, and that is that
every 60 Minutes story is 12 minutes long. If the Air
Force, the Army, the Department of Defense won’t
speak to me and present its side of the story, the
story’s still going to be 12 minutes long.” Certainly,
the best position is for legal offices to plan their
own information operation early. Pelley added,
“The military and journalism are similar in at least
one—in many respects—but one of those respects
is we’re very mission oriented in journalism …
and my boss does not want to hear about mission
failure. We are not going to fail. We are going to
get the story.”
THE JA/PA PARTNERSHIP
A third lesson related to early planning is for legal
offices to “get to know Public Affairs (PA) before
a crisis happens.” 26 PA is specially trained to work
with the media, has an extensive knowledge of
how the media operates, and can provide media
training should comments be requested. A strong
relationship also allows legal offices to brief PA on
“Military Justice 101.” In doing so, legal offices can
educate PA on the military justice system, its basic
procedures, and its fundamental fairness. This
ensures unity of effort when a crisis erupts.
SMART CHARGING DECISIONS
The final lesson relates to charging. In Flinn, most
agree that the adultery charge was a “trailer
offense.” 27 The charge was less serious “both in
involves public figures, elected officials, famous persons. Oddity is something bizarre,
unusual or unexpected. A case with conflict involves one with arguments, debates, or
situations where there is a winner and loser. A suspenseful case is one when the outcome
cannot be foreseen. An emotional case is one where situations that stir up sympathy, anger
or other emotions. Finally a case of sex or scandal is almost always newsworthy because in
appropriate behavior sells media. Id.
24
Rives Interview, supra note 4.
25
Scott Pelley, Address at the National Security Forum, Air War College (13 May 2008).
26
Rives Interview, supra note 4.
27
Rives, supra note 4, at 6.
terms of authorized punishment and also in terms
of breach of standards involved.” 28 Notably, it was
that charge that became “the lightening rod” of the
case. 29 “The most visible reaction from the civilian
community focused on the adultery charge.” 30
All of this begs the question of whether or not it
should have been added at all. Here, Flinn proves
that choosing to charge everything a creative chief
of military justice can think of can be fatal. Instead,
legal offices should charge only “the gravamen of
the offense … what it is that got you angry about
the case, and not the extraneous stuff.” 31
SUMMARY
In conclusion, the Flinn case offers a ground
breaking view of the strategic use of the media
as a tool of advocacy. Before Flinn, no Air Force
accused had ever made such a strong challenge to
the system in the public arena. 32 As a result, many
more do today and, correspondingly, the Air Force
is now generally better positioned to respond.
Ultimately, the Air Force did finally respond well in
the Flinn case. At that same Senate hearing, General
Fogelman offered this superb sound bite: “I think
that in the end, this is not an issue of adultery. This
is an issue about an officer who was entrusted to
fly nuclear weapons, who disobeyed an order, who
lied—that’s what this is about.” 33 To be certain, that
was what the Kelly Flinn case was about, but it
quickly became lost in the fog of a media war.
28
Id.
29
Swanson Interview, supra note 5.
30
Kingsley R. Brown, Military Sex Scandals from Tailhook to the Present: The Cure Can Be
Worse Than The Disease, 14 Du ke J. Of Gender. L. & Po l. 749, 773 (2007).
31
Swanson Interview, supra note 5.
32
Spinner Interview, supra note 11.
33
Hearing, supra note 2, at 25.
Major Jeffrey G. Palomino (B.S.,
University of Illinois at Urbana-
Champaign; J.D., DePaul
University) is a student at Air
Command and Staff College,
Maxwell Air Force Base,
Alabama, and will be serving
as the Deputy Staff Judge
Advocate, Sheppard Air Force
Base, Texas, starting this summer.
Spring 2010
25

THE
FATE
of
CLUSTER
MUNITIONS
By Captain Matthew E. Dunham, USAF
Two days after President
Obama took the oath of
office as the 44th President
of the United States, his administration
deposited instruments of ratification for three
additional protocols to the Convention on
Prohibitions or Restriction on the Use of Certain
Conventional Weapons Which May Be Deemed to
Be Excessively Injurious or to Have Indiscriminate
Effects—also known as the Certain Conventional
Weapons (CCW) Convention. 1 Afterwards, the
Department of State issued a short press release
stating, “The United States took a leading role
in negotiating these protocols … [having] long
complied with the norms contained in them,
and is pleased to become a party to each of
them. This action reaffirms our commitment
to the development and implementation of
international humanitarian law.” 2 What is the
impact of these new protocols on the United
States continued and controversial use of cluster
munitions In the face of global criticism, will
U.S. policy remain unchanged, or is a total ban
just around the corner
THE NEW PROTOCOLS
In recent years significant efforts have been made
to develop and strengthen the CCW Convention.
New rules have been adopted to extend the
application of the CCW to internal conflicts,
1
Convention on Prohibitions or Restriction on the Use of Certain Conventional Weapons
Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects,
Oct. 10, 1980, 1342 U.N.T.S. 137. In addition, the Senate provided its advice and consent
and the President ratified an amendment to Article I of the CCW, extending its scope
to non-international armed conflicts. See 154 Co n g. Rec. S9223, 9333 (daily ed. Sept. 23,
2008).
2
Press Release No. 2009/072, U.S. Dep’t of State, U.S. Joins Four Law of War Treaties
(Jan. 23, 2009) available at http://www.state. gov/r/pa/prs/ps/2009/01/115309.htm.
improve the regulations on landmines, booby
traps and explosive remnant of war and prohibit
blinding laser weapons. The newly ratified
protocols include the Protocol on Prohibitions
or Restriction on the Use of Incendiary Weapons
(Protocol III), 3 the Protocol on Blinding Laser
Weapons (Protocol IV), 4 and the Protocol on
Explosive Remnants of War (Protocol V). 5
implementation of international humanitarian
law.” 6 Specifically, Protocol V on Explosive
Remnants of War requires the clearance of UXO
(unexploded ordnance), such as unexploded
fragments of cluster munitions.
Despite depositing the ratification documents
soon after President Obama took office, the new
ratifications do not appear politically driven.
The protocols have been endorsed by both past
Democrat and Republican Presidents. In February
2007, a full two years prior to the ratification, Mr.
Jeffrey T. Bergner, Assistant Secretary of State
for Legislative Affairs, forwarded the Bush
Administration’s “treaty priority list” for the
110th Congress. 7 Protocol III, Protocol IV, and
Protocol V were included on the list of treaties
for which the Bush Administration supported
immediate Senate action.
3
Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol
III), Oct. 10, 1980, 19 I.L.M. 1524.
4
Protocol on Blinding Laser Weapons (Protocol IV), Oct. 13, 1995, 35 I.L.M. 1218.
5
Protocol on Explosive Remnants of War (Protocol V), Nov. 28, 2003, U.N. Doc. CCW/
MSP/2003/2.
6
See Press Release No. 2009/072, supra note 2.
U.S. Air Force photo
7
Letter from Jeffrey T. Bergner, Assistant Secretary of State for Legislative Affairs, to
The Honorable Joseph R. Biden, Jr., Chairman of the Committee on Foreign Relations,
United States Senate 1 (Feb. 7, 2007), available at http://www.state.gov/documents/
organization/116355.pdf.
26
The Reporter

REASONS FOR RATIFICATION
In light of bipartisan support, why was
ratification delayed In testimony before the
Senate Committee on Foreign Relations in April
2008, Mr. John B. Bellinger, the U.S. Department
of State Legal Advisor, stated that the United
States generally takes its time to ratify treaties
because “close examination is necessary, and
allows us to be sure that the treaties we propose to
ratify are in our national interests.” 8 Mr. Bellinger
then gave four reasons why the time was ripe for
the United States to become a party to Protocols
III, IV, and V. First, “over time we have seen
how these treaties operate and we are confident
that they promote U.S. national interests and
are consistent with U.S. practice.” Second,
“ratification would promote U.S. international
security interests in vigorously supporting both
the rule of law and the appropriate development
of international humanitarian law.” Third, “when
the United States ratifies a treaty, other nations
are more likely to ratify as well, with the result
that overall implementation of and compliance
with these norms will improve over time, which
ultimately helps to protect our forces.” Finally,
ratification enhances United States’ leadership in
international humanitarian law and will allow us
to fully participate in member state meetings and
increase our “negotiating leverage and credibility
in our work on other law of war treaties.”
While valid, the first three reasons do not fully
explain the delay in ratification. Presumably, the
Clinton and George W. Bush administrations felt
sufficient time had passed to evaluate their effects
on national interests and United States’ practices
when they sent them to the Senate in 1997 and
2006. The second and third explanations apply
regardless of delay. These arguments would
have had greater effect if the protocols were
ratified earlier in time. Rather, the final reason
given by Mr. Bellinger seems to be the primary
8
John B. Bellinger, Testimony before Committee on Foreign Relations, U.S. Senate 11-
12 (Apr. 15, 2008), available at http://foreign.senate.gov/testimony/2008/BellingerTestimony080415p.pdf
[hereinafter Bellinger Testimony]. Notably, Mr. Bellinger stated
that the precise wording of the Reservation to Protocol III submitted by the Clinton
Administration “continued to undergo military review, in order to ensure that the United
States was able to retain its ability to employ incendiaries against high-priority military
targets.” It is unclear whether the wording in the current Reservation is any different
than that originally proposed by the Clinton Administration. Certainly, from President
Clinton’s transmittal documents to the U.S. Senate, the meaning is the same, and even
if tweaked, it seems unrealistic that the precise wording of a 90-word statement would
take nearly 12 years to rectify.
purpose for ratification. The United States clearly
needs “negotiating leverage and credibility” on
the issue of cluster munitions, specifically due
to the emergence of the Convention on Cluster
Munitions, which bans their use, production,
or transfer.
Presently, the United States opposes this
treaty, preferring the CCW Convention as the
proper framework treaty to regulate, rather
than ban, cluster munitions. Advocating for
the ratification of Protocol V, Mr. Charles Allen,
Deputy General Counsel for International
Affairs for the Department of Defense, made the
following statement before the Senate Committee
on Foreign Relations:
[T]his year a key element in our effort
to deal with the issues posed by cluster
munitions is ratification of Protocol V
to the Convention on Conventional
Weapons (CCW), on explosive remnants
of war. Our ratifying this Protocol would
strengthen U.S. efforts to show that we
are serious about dealing with cluster
munitions in the CCW framework. The
CCW framework is advantageous to
the United States because it balances
humanitarian and military interests; the
alternative to CCW is an effort by some
other countries to achieve a ban on the
use, production, and transfer of these
weapons without recognizing their
military utility in some circumstances. 9
U.S. Air Force photo by SSgt Lee O. Tucker
9
Mr. Charles A. Allen, Testimony before Committee on Foreign Relations, U.S. Senate 2
(Apr. 15, 2008), (emphasis added).
Spring 2010
27

THE CCM
The Convention on Cluster Munitions (CCM),
which was adopted in Dublin, Ireland, on
30 May 2008, will enter into force on the first
day of the sixth month after ratification by the
thirtieth nation. Specifically, it prohibits state
parties from using, developing, producing,
acquiring, stockpiling, retaining, or transferring
cluster munitions under any circumstance. 10 As
of November 2009, there are
seventy-eight signatories and
twenty-four state parties to
the convention. 11 The United
Kingdom and several NATO
nations are signatories, but
Brazil, China, India, Israel,
Pakistan, and Russia, nations
which have the major stockpiles
of cluster munitions, have not
signed on to the agreement.
THE U.S. POSITION
The United States remains opposed to a
comprehensive ban on cluster munitions under
the CCM, preferring to reach a regulatory
agreement via the CCW Convention because
according to a DOD Cluster Munitions Policy,
“unlike the Oslo process, [it] includes all of the
nations that produce and use cluster munitions
[including Brazil, China, India, Israel, Pakistan,
and Russia], making any agreement reached
there much more practically effective.” 12
According to the U.S.
Department of State, cluster
munitions are “legitimate
weapons with clear military
utility in combat.”
unitary weapons, such as a larger bomb or larger
artillery shell would cause, if used for the same
mission.” Notably, this position is very similar
to the position the United States has taken with
regard to incendiary weapons, which resulted in
the “opt-out” reservation it filed for Protocol III.
While negotiations continue under the
auspices of the CCW Convention, the United
States has taken significant
steps to regulate its use
of cluster munitions. On
19 June 2008, Secretary of
Defense Robert Gates issued a
Department of Defense policy,
eliminating the use of cluster
munitions after the year 2018, if
the weapon has a greater than 1
percent unexploded ordinance
rate. 14 Prior to 2018, any cluster munitions
not meeting this standard must be specifically
approved by the combatant commander. The
policy also prohibited the sale or transfer of
cluster munitions not meeting the 1 percent
standard. Further, on 11 March 2009, President
Obama truncated the timeline on the sale or
transfer of cluster munitions to other nations by
signing the Omnibus Appropriations Act of 2009
into law, which immediately and permanently
banned the export of any cluster munitions if
the weapon did not have a 99 percent or higher
functioning rate. 15
Moreover, according to the U.S. Department
of State, cluster munitions are “legitimate
weapons with clear military utility in combat”
and the elimination of cluster munitions would
put lives of its servicemembers and those of its
coalition partners at risk. 13 The United States’
position is that “cluster munitions can often
result in much less collateral damage than
10
Diplomatic Conference for the Adoption of a Convention on Cluster Munitions, Convention
on Cluster Munitions, May 30, 2008, available at http://www.clusterconvention.
org/downloadablefiles/ccm77_english.pdf.
11
International Committee of the Red Cross, Introduction to Convention on Cluster Munitions,
available at http://www.icrc. org/ihl.nsf/INTRO/620OpenDocument.
12
News Release No. 577-08, U.S. Dep’t of Defense, Cluster Munitions Policy
Released (July 9, 2008), available at http://www.defenselink.mil/releases/release.
aspxreleaseid=12049.
13
Policy Statement, U.S. Dep’t of State, Cluster Munitions, available at http://www.
state.gov/t/pm/wra/ c25930.htm.
NOT A “MAJOR POLICY SHIFT”
World media and proponents of banning cluster
munitions have given attention to President
Obama’s export prohibition, exclaiming a
“major policy shift” by the United States on
cluster munitions. 16 However, the Consolidated
Appropriations Act of 2008, signed into law by
14
Memorandum from Sec’y of Defense to Sec’ys of the Military Dep’ts, et al., Subject:
DOD Policy on Cluster Munitions and Unintended Harm to Civilians (June 19, 2008),
available at http://www.defense.gov/news/d20080709cmpolicy.pdf.
15
Omnibus Appropriations Act of 2009, Pub. L. No. 111-8, § 7056(b), 123 Stat. 524, 895.
The law further specifies that the transfer or sale of cluster munitions must specify that
the cluster munitions will only be used against clearly defined military targets and will
not be used where civilians are known to be present.
16
See, e.g., Peter Beaumont, Obama Takes U.S. Closer to Total Ban on Cluster Bombs,
g u a rd i a n.co.u k, Mar. 13, 2009; Human Rights Watch, U.S. Cluster Bombs Exports Banned,
w w w.h r w.o rg, Mar. 12, 2009; Frida Berrigan, Progress on Cluster Bombs, Fo re i g n Po l i c y in
Fo c u s, Mar. 25, 2009; United Press International, Group to Obama: Ban Cluster Bomb Use,
UPI.c o m, Mar. 12, 2009.
28
The Reporter

The United States remains opposed
to an outright ban on cluster
munitions.
U.S. Air Force photo by SSgt Matthew Hannen
President Bush on 26 December 2007, contained
identical language, though it limited the export
ban for one year. 17 Also, as noted above, Secretary
of Defense Gates, who in June 2008 worked for
President Bush, directed an export and use ban as
a matter of DOD policy. The DOD policy affects
more than 95 percent of current U.S. stockpiles,
which consists of more than five million cluster
munitions with 700 million sub-munitions, and
will cost approximately $2.2 billion to destroy. 18
Despite reports from some media organizations,
the United States remains opposed to an
outright ban on cluster munitions, and policy
remains focused on regulating cluster munitions
within the framework of the CCW Convention
by pressing for a new cluster munitions protocol.
On 12 November 2009, in his opening statement
at the Meeting of the High Contracting Parties
to the CCW Convention in Geneva, Switzerland,
Mr. Stephen Mathias, Head of the U.S. Delegation
focused his remarks on this objective. 19 Recognizing
that many nations represented at the meeting
had signed the CCM, Mr. Mathias noted:
[A] comprehensive international response
to the humanitarian concerns
17
Consolidated Appropriations Act of 2008, Pub. L. No. 110-161, § 646(b), 121 Stat.
1844, 2336 (2007).
18
Opening Statement by Harold Hongju Koh, U.S. Mission to the U.N., Geneva, Third
Conference of the High Contracting Parties to Protocol V on Explosive Remnants of War
(Nov. 9, 2009), available at http://geneva.usmission.gov /2009/11/09/erw/.
19
At the November 2009 conference, the High Contracting Parties to the CCW Convention
convened to consider the report to the Group of Governmental Experts of the States
Parties to the Convention on Certain Conventional Weapons (CCW-GGE), which had met
two times during 2009 and produced a draft protocol. The CCW Cluster Munitions draft
protocol is available at http://www.unog.ch/80256EDD006B8954/(http/Assets)/DFCDA-
FA34278B5E5C1257620004D7238/ $file/CLUSTER+MUNITIONS+CHAIR.pdf.
associated with cluster munitions must
include action by those States that are
not in a position to become parties to
the CCM, because among those States
are the States that produce and stockpile
the vast majority of the world’s cluster
munitions … A CCW protocol that imposes
meaningful requirements on the
countries that hold 90 percent of the
world’s stockpiles of cluster munitions
would be an important step forward
from a humanitarian standpoint. 20
Mr. Mathias emphasized the United States’
commitment to achieving a cluster munitions
protocol and noted that an existing draft protocol
provides a foundation for work towards this goal
in 2010.
FINAL THOUGHTS
Ratification of Protocols III, IV, and V is “a
symbol of U.S. application of the rule of law in
armed conflict and helps restore U.S. leadership
in the law of war.” 21 This is the driving purpose
behind the United States ratifying these protocols.
No additional restrictions have been placed on
the United States’ military, especially given the
reservation filed with respect to Protocol III
that essentially nullifies the driving force of the
agreement. Concerning Protocols IV and V, the
United States’ military has acted in compliance
with these agreements since they came into
effect. By publicly ratifying the protocols, the
20
Opening Statement by Mr. Stephen Mathias, Head of U.S. Delegation, Meeting of the
High Contracting Parties to the CCW Convention, Geneva (Nov. 12, 2009), available at
http://geneva.usmission.gov/2009/11/12/openingstatement/.
21
See Bellinger Testimony, supra note 8, at 2.
Spring 2010
29

U.S. Air Force photo by Harold Fyke
United States hopes to increase its international
credibility and leverage to facilitate the
negotiation of a new international agreement
regulating cluster munitions short of an
outright ban.
Whether ratification of these protocols is
too little, too late is yet to be seen. It is certain,
however, that negotiations for a new international
treaty within the CCW Convention framework
are proceeding. As most NATO nations have
already signed the Convention on Cluster
Munitions, with only a few additional ratifications
needed for it to come into effect, the negotiation
of a regulatory based protocol under the CCW
Convention is an uphill battle. Yet as noted by
Ambassador Stephen Mull, the Acting Assistant
Secretary for Political-Military Affairs for the U.S.
Department of State, “unless you get all the major
producers and users of these weapons to agree
on how they’re going to regulate them, the—[sic]
you’re not going to meet your goal of addressing
the humanitarian impact of them.” 22 In other
words, real humanitarian impact necessarily
includes participation by Brazil, China, India,
Israel, Pakistan, Russia, and of course, the
United States.
22
Stephen D. Mull, On-the-Record Briefing on U.S. Cluster Munition Policy, Wash., D.C.
(May 21, 2008), available at http://www.america.gov/st/texttrans-english/2008/May/
20080522163101eaifas0.8921015.html.
Captain Matthew
E. Dunham (B.A.,
Messiah College
(1998); J.D.,
Pennsylvania State
University, The
Dickinson School of
Law (2003)) is the
Deputy Staff Judge
Advocate for the 501st
Combat Support Wing, RAF Alconbury,
United Kingdom.
30
The Reporter

PLATFORMS FOR
MEDICAL READINESS
by Captain Charles G. Kels, USAF
After the first Gulf War, the
Government Accountability Office
(GAO) was tasked by the House
Committee on Armed Services with evaluating
the wartime performance and capabilities
of the Army, 1 Navy, 2 and Air Force 3 medical
components. The results of all three reviews
were worrisome, suggesting that the skill deficits
identified among medical personnel could have
proved catastrophic had Operation Desert Storm
achieved the duration and casualty levels that
many predicted. In its report on the Air Force, the
GAO concluded that the medical and evacuation
units provided to U.S. Central Command “would
not have been sufficient to handle the large number
of predicted casualties.” Among the problematic
factors identified were a lack of training and
currency in appropriate skills, particularly when
personnel serving primarily in administrative
roles at their permanent stations were rapidly
deployed to provide in-theater care. 4
BALANCING WARTIME READINESS AND
PEACETIME CARE
The GAO reports provided the impetus for a
general recognition within the military health
system (MHS) of the need to place greater
emphasis on the wartime mission, especially with
respect to clinical skills. The “Medical Readiness
Strategic Plan 2001” (MRSP 2001), released in
1
U.S. Gov. Accountability Office, Operation Desert Storm: Full Army Medical Capability
Not Achieved (Aug. 1992).
2
U.S. Gov. Accountability Office, Operation Desert Storm: Improvements Required In
The Navy’s Wartime Medical Care Program (July 1993).
3
U.S. Gov. Accountability Office, Operation Desert Storm: Problems With Air Force
Medical Readiness (Dec. 1993).
4
Id. at 2-3, 7-8.
Combat Lifesaving Training in Iraq
U.S. Air Force photo by MSgt Trish Bunting
early 1995, acknowledged that the structure and
priorities of the MHS had “resulted in a peacetime
care orientation with an active duty specialty
skill mix of personnel and training programs
that differ significantly from skills required to
support wartime operations.” In order to remedy
the training shortfall, the MRSP 2001 cited “an
ongoing need … for individuals to practice
their operational skills in an environment that
simulates contingency situations.” 5
To meet this need, the Congressional Budget
Office (CBO) suggested rotating “military medical
personnel through civilian shock trauma centers,
in which the conditions of patients resemble
those that military physicians would encounter in
wartime much more closely than do the diagnoses
found in treating military beneficiaries.” For
example, the CBO estimated that 98 percent of
5
U.S. Dep’t of Defense, Medical Readiness Strategic Plan 2001 at 39-40 (Mar. 1995)
[hereinafter MRSP 2001].
Spring 2010
31

the cases treated at the R. Adams Cowley Shock
Trauma Center in Baltimore, Maryland, matched
a “casualty-related diagnosis,” compared with
just 5 percent of the caseload in military medical
treatment facilities (MTFs). Thus, military healthcare
providers needed to treat roughly 400,000
patients in an MTF in order to obtain the same
“war-related” training that could be derived
from seeing 20,000 patients at the Baltimore
trauma center. 6 In light of these findings, the CBO
concluded that “the care furnished in military
medical centers and hospitals in peacetime bears
little relation to many of the diseases and injuries
that medical personnel need to be trained to deal
with in wartime.” Civilian “level 1 shock trauma
facilities,” in contrast, were “likely to provide
the best wartime training in trauma care and
casualty-related diagnoses.” 7
Congress formally acted on the CBO’s recommendation
in the 1996 National Defense
Authorization Act (NDAA), providing for “a
demonstration program to evaluate the feasibility
of providing shock trauma training for military
medical personnel through one or more public
or nonprofit hospitals.” 8 The Assistant Secretary
of Defense for Health Affairs subsequently convened
the Combat Trauma Surgical Committee to
develop trauma care training recommendations,
which were approved by the service Surgeons
General the following year. 9 By 1999, the MHS
had established the Joint Trauma Training Center
at Ben Taub General Hospital in Houston, 10
which accommodated nine military rotations per
year, alternating among the uniformed medical
services. 11 The Surgeons General continued to
explore additional trauma training sites, which
6
Hearing on the Wartime Mission of the Military Medical System Before the Subcomm. on
Mil. Personnel of the H. Comm. on Nat’l Security, 104th Cong. (1995) (statement of Neil M.
Singer, Cong. Budget Office).
7
U.S. Cong. Budget Office, Restructuring Military Medical Care at 6-7, 37-38 (July
1995) [hereinafter CBO, Restructuring Mil. Med. Care].
8
National Defense Authorization Act for Fiscal Year 1996, Pub. L. No. 104-106, § 744,
110 Stat. 386 (1996).
9
U.S. Gov. Accountability Office, Medical Readiness: Efforts Are Underway for DOD
Training in Civilian Trauma Centers (Apr. 1998).
10
Ernest E. Moore, et al., Military-Civilian Collaboration in Trauma Care and the Senior
Visiting Surgeon Program, 357 New En g. J. Med. 2723 (2007).
11
Mark Kinkade, Weekend in a War Zone, Ai rm a n , July 2001, at 2.
C-STARS Training
U.S. Air Force photo by A1C Wesley Farnsworth
the Air Force called Centers for Sustainment of
Trauma and Readiness Skills (C-STARS). 12
CENTERS FOR SUSTAINMENT OF TRAUMA
AND READINESS SKILLS (C-STARS)
The C-STARS concept entails embedding Air
Force healthcare providers in busy civilian level
1 trauma centers for high-intensity rotations
lasting two to three weeks. The three C-STARS
sites established by the Air Force Medical Service
(AFMS) include the University of Maryland’s
aforementioned R. Adams Cowley Shock Trauma
Center, the Cincinnati University Hospital
Trauma Center, and the St. Louis University
Health Sciences Center. 13 These “civilian
academic medical centers serve as training
platforms to help sustain necessary readiness
skills.” 14 C-STARS completion is mandatory
for all clinical personnel assigned to “primary
trauma or critical care” unit type codes (UTCs),
with the frequency of attendance determined
by whether or not the individual medic’s daily
practice otherwise mirrors “the trauma skills
needed to care for combat casualties.” The
C-STARS Cincinnati program is specifically
12
Lieutenant General (Ret.) Paul K. Carlton and Colonel Donald H. Jenkins, The Mobile
Patient, 36 Cr i t. Ca re Med. S255, S256 (2008).
13
See Colonel Dan R. Hansen, C-STARS: Honing Skills to Make a Difference, A.F. Med. Co r p s
Ex a m i n e r, Fall 2009, at 7.
14
Hearing on Medical Programs Before the Subcomm. on Mil. Personnel of the H. Comm.
on Armed Services, 107th Cong. (2002) (statement of Lt Gen Paul K. Carlton, Air Force
Surgeon General) [hereinafter Carlton statement].
32
The Reporter

designed and required for members of Critical
Care Air Transport Teams (CCATTs). 15 A fourth
C-STARS platform, also focused on CCATT
training, is being developed at the San Antonio
Military Medical Center. 16
The “hands-on clinical sustainment training”
provided through C-STARS immersion is
intended to “offer an intense workload coupled
with clinical experience that sharpens and
refreshes medics’ trauma care.” 17 The advent of
C-STARS training opportunities also enabled
the AFMS to cultivate the Readiness Skills
Verification Program (RSVP), 18 which
defines “the clinical tasks required
of deployable medics” and sets corresponding
standards for clinical
currency. 19 The RSVP is “designed
to ensure all medical personnel
maintain adequate skills to perform
their duties during wartime, humanitarian
assistance, and installation
response contingencies.” 20 It has been
compared to flight-hour requirements
for rated career fields in
that its standardized checklists
specify training tasks and
performance items by Air Force specialty code
(AFSC). 21 The C-STARS curriculum facilitates
completion of each rotator’s RSVP requirements
by course end. 22 Over the course of eleven full
training days, for example, the University of Cincinnati
site provides “30 hours of lecture material,
five hours of lab, 48 hours of clinical time,
eight hours of simulator time, and 22 hours in
flight operations.” 23
15
U.S. Dep’t o f Air Fo rc e, In s t r. 41-106, Un i t Level Ma n a g e m e n t o f Me d i c a l Readiness Pro g r a m s at
5.7.2 (14 Apr. 2008) [hereinafter AFI 41-106].
16
Colonel Dan R. Hansen, STARS-P Program Unveiled, A.F. Med. Co r p s Ex a m i n e r, Winter
2009, at 7.
17
Hearing on Medical Readiness Before the Subcomm. on Defense of the S. Comm. on
Appropriations, 110th Cong. (2008) (statement of Lt Gen James G. Roudebush, Air Force
Surgeon General).
18
Carlton and Jenkins, supra note 12, at S256.
19
Carlton statement, supra note 14.
20
AFI 41-106, supra note 15, at paragraph 5.7.1.
21
Colonel Michael Restey, C-STARS Prepares Medics for Expeditionary Duties, Air Fo rc e
Su rg e o n Gen. Ne w s w i r e (Mar. 04).
22
Memorandum, Air Force Surgeon General, to MAJCOM Surgeons General, subject:
C-STARS (6 Mar. 2003).
23
Hearing on Medical Readiness Before the Subcomm. on Defense of the S. Comm. on
To date, the
Surgeon General
has approved five
STARS-P locations,
at Luke, Nellis,
Wright-Patterson,
Travis, and Lackland
Air Force Bases.
SUSTAINMENT OF TRAUMA AND RESUS-
CITATION SKILLS PROGRAM (STARS-P)
Even as the C-STARS program was developing,
the AFMS recognized that some MTFs already
had “existing training affiliation agreements
(TAAs) with local civilian facilities to provide care
for acute patients,” and that these TAAs provided
another “opportunity for Air Force medical
personnel to work within a civilian hospital to
maintain skill currency.” 24 Whereas C-STARS
provides an intense immersion experience and
the opportunity for “just-in-time training,” it is
necessarily episodic in nature. The long-term
goal of maintaining the skills learned
or relearned through C-STARS
requires “on-going clinical exposure
to high-acuity patients.” 25
In August 2009, the Surgeon
General issued a guidance
memorandum implementing the
Sustainment of Trauma and Resuscitation
Skills Program (STARS-P).
The STARS-P concept is intended
to fill in the gaps left by C-STARS
“by regularly immersing staff in
on-going clinical rotations at nearby
civilian level 1 trauma centers to maintain clinical
proficiency.” Unlike C-STARS, the STARS-P
initiative does not envision embedding AFMS
personnel in civilian medical centers. Instead,
participating medics will rotate through the local
STARS-P site as part of their normal duties for
at least two days each month, or one week every
three months. Whereas C-STARS is centrally
funded and overseen by the Air Force Expeditionary
Medical Skills Institute (AFEMSI),
STARS-P is a decentralized program executed
by the MTF commander and appropriate major
command surgeon general, with AFEMSI providing
overarching guidance. The STARS-P vision is
not to supplant C-STARS, but rather to develop
into a program robust enough to diminish the
frequency of C-STARS attendance for everyone
except assigned CCATT members. 26
Appropriations, 110th Cong. (2008) (statement of Maj Gen Melissa A. Rank, Asst. Air
Force Surgeon General).
24
AFI 41-106, supra note 15, at paragraph 5.7.2.3.
25
Hansen, supra note 16, at 7.
26
Memorandum, Air Force Surgeon General, to MAJCOM Surgeons General, subject:
Spring 2010
33

To date, the Surgeon General has approved
five STARS-P locations, at Luke, Nellis, Wright-
Patterson, Travis, and Lackland Air Force Bases.
With the exception of Lackland AFB, where
participating personnel will rotate through their
own facility within the San Antonio Military
Medical Center, the local STARS-P sites will
be established and renewed every three years
through TAAs with non-federal institutions. 27 As
the current STARS-P sites are developed and new
sites are approved, these no-cost agreements for
proficiency training will be reviewed by base legal
offices and medical law consultants to ensure the
best possible protection for the rotating MTF staff
and the Air Force. 28
TRAINING AND RESULTS
While the data is incomplete and the current
conflicts still ongoing, the events since 2001
reflect “a military medical system that has
made fundamental—and apparently effective—
changes in the strategies and systems of battle
care, even since the Persian Gulf War.” Through a
combination of skill, courage, mobility, strategy,
and technological advancement, military medics
are saving “the lives of an unprecedented 90 percent”
of servicemembers wounded in action. 29
STARS-P Concept of Operations (10 Aug. 2009).
27
Id.
28
See U.S. Dep’t o f Air Fo rc e, In s t r. 41-108, Tr a i n i n g Affiliation Agreement Pro g r a m (1 Jan.
2005).
Diverse Trauma Training Saves Lives
U.S. Air Force photo by MSgt Scott Reed
29
Atul Gawande, Casualties of War – Military Care for the Wounded from Iraq and
Afghanistan, 351 New En g. J. Med. 2471, 2475 (2004).
The tension inherent in the twofold mission
of the MHS as both a provider of full-spectrum
care to eligible beneficiaries in a peacetime
environment, as well as a force of “ready medics”
prepared to triage, treat, and evacuate wartime
casualties, may not be susceptible to a complete
resolution as long as military medicine remains
so dually charged. However, by turning to
civilian shock trauma centers for the right mix
of patient loads and medical conditions, the
health services have made significant strides in
mitigating the experiential deficits and atrophy
of critical care skills that can hamper wartime
readiness. Approaching the readiness and
peacetime missions as “inextricably linked”
has yielded innovative training platforms and
apparently improved patient outcomes. 30
Given the military roots of trauma care,
the renewed collaboration between military
and civilian institutions seems particularly
appropriate. In 1961, when the Army provided a
grant for the nation’s first shock trauma unit, it
selected Dr. R. Adams Cowley as the recipient. 31
Forty years later, the Baltimore medical center
bearing the name of the late pioneer in emergency
medicine opened its doors to Air Force surgical
teams seeking vital trauma care experience. The
Army’s Cold War-era largesse continues paying
dividends for deployed troops to this day.
30
Carlton statement, supra note 14.
31
CBO, Restructuring Mil. Med. Care, supra note 7, at 37.
Captain Charles
G. Kels (B.A.,
Harvard University;
J.D., University
of Pennsylvania)
serves as a
regional Medical
Law Consultant,
stationed at the
Mike O’Callaghan
Federal Hospital, Nellis Air Force Base,
Nevada.
34
The Reporter

Developments from the Field
Recent Efforts
to Abolish the
Feres Doctrine in
Military Medical
Malpractice Cases
By Ms. Robin Brodrick, AFLOA/JACC
Photo by Adam Ciesielski
When Congress enacted
the Federal Tort Claims
Act (FTCA) in 1948, the
legislation was momentous in its express waiver
of sovereign immunity, which would allow
individuals alleging personal injury or property
damage as a result of the act or omission of a
federal government employee acting within the
scope of their employment to bring suit against
the government. 1 However, the applicability of
the FTCA to allegations of negligence resulting
in injury to members of the armed forces incident
to their military service was not clear on the face
of the law. That question was clarified by the
Supreme Court nearly sixty years ago when
the Court declined to apply the FTCA to such
allegations. 2 The refusal of the Court to extend
the FTCA to members of the armed forces based
on its interpretation of the legislative intent of
the Act has since been the subject of significant
attacks, particularly by service members and
their families alleging serious injury or death as
the result of military medical care.
1
28 U.S.C. §§ 1346(b), 2671-2680.
2
See Feres v. United States, 340 U.S. 135 (1950).
In the case of Feres v. United States, the
Supreme Court held that there was no waiver of
sovereign immunity under the FTCA for claims
“incident to service.” 3 In reaching this holding,
the Court examined the legislative history of the
Act and concluded that the purpose of the FTCA
was to create a remedy where there was none,
not to create unprecedented liabilities. The Court
noted that, to date, no law had ever “permitted
a soldier to recover for negligence, against
either his superior officers or the Government
he is serving.” 4 Further, noting that the FTCA
specifically provided that “the United States
shall be liable … in the same manner and to the
same extent as a private individual under like
circumstances,” the Court opined that there was
no “like circumstance” for a private person. 5 In
reaching its holding, the Court also found it
significant that the FTCA applies “the law of
the place where the act or omission occurred.”
The Court reasoned that it did not make sense
to use the geography of the injury in selecting
the applicable law for an active duty service
3
Id. at 146.
4
Id. at 141-42.
5
Id.
Spring 2010
35

member, who had no choice in where they
were stationed. 6 The majority further pointed
out that most states had abolished the common
law action for damages between an employer
and employee, superseding it with
worker’s compensation statutes.
Likewise, the military had a uniform
system of compensation through its
disability system strengthening the
argument that it would make no
sense to subject military members to
the varying state laws based on mere
geography. 7 Finally, the Court opined
that “the relationship between the Government
and members of its armed forces is ‘distinctively
federal in character,’” and should not be subject
to state law. 8 This holding, which became known
as the Feres Doctrine, has been applied for nearly
sixty years to prohibit military members from
suing the United States for medical malpractice.
Since 1950, the Feres Doctrine has been
the subject of many challenges in both the
judicial and legislative arenas. Most recently,
Congressman Maurice Hinchey of New York
introduced the Carmelo Rodriguez Military
Medical Accountability Act of 2009, H.R. 1478. 9
The stated purpose of the bill is, “to allow
members of the Armed Forces to sue the United
States for damages for certain injuries caused by
improper medical care and for other purposes.” 10
The bill is named after Marine Sergeant Carmelo
Rodriguez, who died of metastatic cancer,
allegedly the result of delayed diagnosis by
military medical providers. 11 If passed, the bill
would allow claims against the United States for
personal injury or death of a military member
arising out of “a negligent or wrongful act or
6
Id. at 143.
7
Id.
8
Id. at 143-44.
9
H.R. 1478, 111th Cong. (2009). Representative Hinchey previously introduced a
similar bill in 2008. H.R. 6093, 110th Cong. (2008). That bill died in subcommittee at
the conclusion of the 110th Congress.
10
Id.
11
Sergeant Rodriguez died of skin cancer in 2007 at the age of 29. His family alleges
that the initial examination he received in 1997 when he joined the Marine Corps
revealed a melanoma on his buttocks, but he was never informed of the finding. The
family further alleges that while deployed to Iraq in 2005, Sergeant Rodriguez sought
care from a military physician for bleeding from a sore on his buttocks. His family claims
the physician diagnosed a birthmark or a wart and that this further delayed diagnosis
of melanoma, leading to metastatic disease and death.
Since 1950, the
Feres Doctrine has
been the subject of
many challenges.
omission in the performance of medical, dental,
or related health care functions (including clinical
studies and investigations) that is provided by a
person acting within the scope of the office or
employment of that person by or at
the direction of the Government of
the United States.” 12 The bill proposes
a retroactive date of 1 January 1997, a
date which appears to be specifically
intended to allow the family of
Sergeant Rodriguez to pursue an
action under the FTCA. Another
significant provision in the proposed
legislation would permit members of the Armed
Forces to sustain actions under the FTCA for
acts and omissions occurring outside the United
States, an entitlement that is not available to
other categories of FTCA plaintiffs. 13 For acts or
omissions occurring outside the United States,
the bill purports to apply “the law of the place of
domicile of the plaintiff.” 14
The original version of H.R. 1478 contained
several important provisions, which were deleted
in a subsequent amendment. For example, in the
original bill, a service member’s recovery under
the FTCA would be reduced by the value of
disability payments related to the injury. 15 This
would prohibit an injured party from recovering
lost wages in an FTCA action to the extent they
had already been compensated for those same
damages by the disability system. The deletion of
this set off would mean instead, individual cases
would be subject to the varying collateral source
rules of applicable state jurisdictions, without
any uniformity in recovery.
12
H.R. 1478, supra note 9, at § 2.
13
The FTCA’s “foreign country exclusion,” specifically excludes “any claim arising in a
foreign country.” 28 U.S.C. § 2680(k). For incidents occurring in a foreign country, the
Military Claims Act provides a remedy, but the agency is the final arbiter with no
judicial recourse. See 10 U.S.C. § 2733. Interestingly, Representative Vic Snyder (D-AR-2),
introduced H.R. 3285 on 21 July 2009, a bill to amend the FTCA to permit “individuals
accompanying Federal employees who are engaged in missions for the United States
Government in foreign countries” to bring claims under the FTCA, thereby providing
legal recourse against the United States. The bill, which currently doesn’t have any cosponsors,
was referred to the House Committee on the Judiciary and has remained in the
Subcommittee on Immigration, Citizenship, Refugees, Border Security and International
Law since 14 September 2009.
14
Id.
15
Id.
36
The Reporter

On 7 October 2009, the amended bill was
ordered to be reported by the House Committee
on the Judiciary by a vote of 14-12. The amended
bill was reported to the Committee of the Whole
House of the State of the Union and placed on
the Union Calendar on 26 April 2010. 16 The bill
currently has twelve co-sponsors. A companion
bill, S.1347, was introduced to the Senate
by Senator Charles E. Schumer (D-NY), and
referred to the Committee on the Judiciary on 24
June 2009. 17
The Feres Doctrine has also been the subject
of recent attacks in the courts, including two
petitions for certiorari to the Supreme Court.
Earlier this year, in the case of Hafterson v.
United States, petitioners Matthew and Barbara
Hafterson alleged negligence in the treatment
their son Nathan, an active duty military member,
received at the Naval Hospital Jacksonville,
when he died a day after being admitted with
pneumonia. After their case was dismissed by
the U.S. District Court for the Middle District
of Florida and the Court of Appeals for the
Eleventh Circuit based on Feres and its progeny,
the Haftersons petitioned the Supreme Court,
imploring the Court to reconsider the nearly
sixty-year-old doctrine. The Supreme Court
denied the petition on 13 October 2009. 18
The most recent Feres-barred plaintiff to
petition the court is Aimee Zmysly, wife of Yuriy
Zmysly, an active duty Marine Corps member
who suffered severe brain damage after he was
admitted to Cherry Point Naval Hospital for an
emergency appendectomy. Mrs. Zmysly filed a
petition for certiorari on 15 March 2010, after her
case was dismissed by the U.S. District Court for
the Northern District of Illinois and the Court of
Appeals for the Seventh Circuit, also based on
16
According to Clause (a)(1) of Rule XIII of the Rules of the House of Representatives,
the Union Calendar is “[a] Calendar of the Committee of the Whole House on the state of
the Union, to which shall be referred public bills and public resolutions raising revenue,
involving a tax or charge on the people, directly or indirectly making appropriations of
money or property or requiring such appropriations to be made, authorizing payments
out of appropriations already made, releasing any liability to the United States for
money or property, or referring a claim to the Court of Claims.”
17
S. 1347, 111th Cong. (2009).
Feres. 19 Although it is anticipated that the Court
will again deny certiorari, this is certainly a case
to monitor, as several of the sitting justices have
expressed their disagreement with the Feres
decision in the past. 20
Many of the proponents of a judicial
or legislative “repeal” of the Feres Doctrine,
particularly in the context of medical malpractice,
argue that a fix is necessary to hold military
medical providers accountable for negligence.
Military attorneys should be aware that there are
several processes in place to ensure the quality
of care provided to service members, even when
a claim would be barred by the Feres Doctrine.
Under current Department of Defense policies,
the services are required to report every
malpractice payment to the National Practitioner
Data Bank (NPDB) when a determination is made
that the payment was a result of the failure to meet
the requisite standard of care. 21 In addition, the
services are also required to identify and report
cases where a disability payment is made as
result of medical care provided by a military
healthcare provider based on the failure to meet
the standard of care. 22
19
See Zmysly v. U.S., No. 1:08-cv-0611, slip op. (N.D. Ill. Aug. 20, 1009), aff’d, 09-3402,
slip. op at 2 (7th Cir. Dec. 7, 2009), petition for cert. filed, 2010 WL 979064 (U.S. Mar. 15,
2010). On 16 April 2010, Alexis Witt, whose husband Air Force Staff Sergeant Dean Witt
died after an appendectomy at Travis Air Force Base in 2003, filed a brief amicus curiae.
2009 WL 6363654 (U.S. Sept. 16, 2009)
20
See, e.g., U.S. v. Johnson, 481 U.S. 681, 700 (1987), Scalia dissenting (“Feres was
wrongly decided and heartily deserves the ‘widespread almost universal criticism’ it has
received.”). Justice Stevens joined in the dissent.
21
U.S. Dep’t of Defense, Reg. 6025.13, Military Health System (MHS) Clinical Quality
Assurance (CQA) Program Regulation at C10.3. (11 June 2004).
22
Memorandum, Assistant Secretary of Defense (Health Affairs) to Service Assistant
Secretaries (Manpower and Reserve Affairs), Improved Medical Quality Assurance
Program Procedures for National Practitioner Data Bank Reporting Under DOD Directive
6025.13 (16 Jan. 2009).
Ms. Robin Brodrick (B.A., Villanova University; J.D.,
University of Maryland) serves as a Medical Law
Attorney in the Claims and Tort Litigation Division,
Air Force Legal Operations Agency, in Arlington,
Virginia.
18
See Hafterson v. U.S., No. 3:08-cv-533-J-16MCR, slip op. at 4 (M.D. Fla. Nov. 4, 2008),
aff’d, 08-16857-AA, slip. op. at 2 (11th Cir. Apr. 8, 2009), cert. denied, 130 S.Ct. 416
(2009).
Spring 2010
37

Military Justice Pointers
Expert Witnesses and Consultants:
A Comprehensive Study
By Major Conrad l. Huygen, USAF
When a court-martial hangs
in the balance, the opinion of an
expert witness can tip the scales between a finding
of guilty and an acquittal. Whether they are
explaining how the Air Force screens urine for the
presence of drug metabolites, the theory behind
reconstructed memory, or the characteristics of
street gang activity, experts are fixtures in the
military justice landscape, and in complex cases
they are absolutely essential to a fair trial. The
powerful impact that forensic experts can have
on a case—even if they never take the witness
stand—goes beyond the courtroom, as there are
few topics that will ignite a more spirited debate
among judge advocates than the funding, use, and
availability of expert witnesses and consultants. 1
Everyone involved with the military justice
system has opinions and anecdotes about experts,
but personal experiences are no substitute for
the dispassionate analysis of data collected on a
global scale when it comes to making decisions
that affect courts-martial. In order to establish
a clear picture of the number, types, uses, and
costs of this critical resource, the Military Justice
Division (JAJM) of the Air Force Legal Operations
Agency conducted a study of the hundreds of
experts who served as court-martial consultants
and witnesses in 2007 and 2008. The two-year
snapshot that emerged not only provides a
comprehensive view for the JAG Corps of the
forensic expert landscape but also establishes a
1
For the purposes of the study, the term “consultants” refers to experts who were
appointed to assist counsel either before or during trial but who never took the stand,
while “witnesses” are those experts who did in fact testify at some point during the
proceedings.
foundation for sound decisions about how the Air
Force can improve trial management practices.
METHODOLOGY
In March 2009, JAJM asked each of the major
command legal offices to lead the effort in
gathering data that would permit a meaningful
analysis of expert usage for calendar years 2007
and 2008 without causing an undue collection
burden to the field. Judge advocates, paralegals,
and civilians at every level forwarded the types
of experts used in courts-martial broken down
into 10 standardized categories, the number of
active duty military and Department of Defense
(DOD) civilian experts versus non-DOD experts,
whether the expert assisted the prosecution or the
defense, whether the expert testified at trial as a
witness or remained a consultant, and how much
convening authorities paid to non-DOD experts
in professional fees. To keep the data collection
focused and as simple as possible, JAJM did not
request any information that would not further
38
The Reporter

Figure 1. Experts by Field of Practice
(CY07 & CY08)
the study’s goal of describing what kinds of
experts we use, how we use them, how often
DOD experts are meeting the demand for courtmartial
support services, and how much the Air
Force pays when DOD experts are unavailable.
This focused approach yielded 120 data points
for each calendar year studied.
NUMBERS AND TYPES OF EXPERTS
In 2007 and 2008, the Air Force completed
a total of 1,225 general and special courtsmartial.
2 During this two-year period, convening
authorities appointed a total of 928 experts to
assist the prosecution and the defense with trial
duties. 3 Counsel consulted with a variety of
experts and Figure 1 illustrates the percentages of
experts by fields of practice in each of the study’s
10 standardized categories. Of the experts who
participated in Air Force courts-martial in any
capacity, 30 percent (275 of 928) were for drug
testing purposes 4 and 29 percent (270 of 928)
were for mental health issues. 5 These areas of
expertise ranked first and second in terms of
overall usage, respectively. The fact that counsel
used these two types of experts most frequently
2
Court data compiled from the Automated Military Justice Analysis and Management
System (AMJAMS).
3
Although some experts assisted in more than one case, for the purposes of the study
each appointment was counted separately to ensure an accurate measure of usage and
costs.
4
E.g., a toxicologist to explain how hair is tested for the presence of drug metabolites.
5
E.g., a psychiatrist to discuss the impact of trauma on how people perceive, retain,
and recall events.
is not surprising given the overall prevalence of
drug and sexual assault charges that are referred
to trial. What is surprising is that no other category
comes close in terms of frequency of use and that
together these two areas accounted for 59 percent
of all experts during the study period.
Experts who helped counsel understand
the effects of drugs and alcohol, 6 which can
have significant overlap with the same pool of
experts who assist with drug testing and mental
health issues, add another 10 percent (95 of 928)
to the already large drug testing/mental health
portion of the pie. Only 5 percent (48 of 928)
of experts were used for computer forensics
and just 4 percent (34 of 928) aided with DNA
analysis, although the impact of these numbers
is magnified by the length of time it takes to
complete forensic reports in both areas and the
effect that this type of evidence can have on a
case. Perhaps not surprising is that sexual assault
examiners accounted for only 3 percent (28 of 928)
of experts. Cases alleging sexual misconduct often
involve delayed reporting by the complainant
or, if the report is timely, do not revolve around
whether sexual contact occurred but rather
whether there was consent or mistake of fact as
to consent. Although every specialty can play a
critical role in the right case, the high demand
for drug testing and mental health experts merits
the most attention when it comes to overall
resource management.
EXPERT FEES AND OTHER COSTS
One of the biggest concerns from a convening
authority’s perspective is the cost associated
with hiring non-DOD civilian experts when DOD
assets are not available, which was the case for
61 percent (569 of 928) of all expert trial support
services in 2007-2008. Depending on the subject
area, it is common for expert fees in a litigated
court-martial to reach $2,000 or more a day for
an expert to be present at trial assisting counsel.
Multiply that figure by two if the opposing party
also has an expert, then multiply it by another
eight to cover the days spent travelling, preparing,
observing and testifying in a typical five-day
trial. Now add travel and per diem on top of
that, not to mention any pretrial consultation
6
E.g., a psychologist to explore the phenomenon of alcohol-induced blackouts.
Spring 2010
39

costs, and before long convening authorities are
looking at a sizable bill. In cases that require more
than one expert per side in highly specialized
fields of practice, total expert costs can exceed
$100,000 if DOD assets are not available to provide
trial support.
While the potential for high expert costs
in extremely complex trials is real, those cases
are the exception rather than the rule, and the
study provides the JAG Corps with a level of
fiscal comfort for the vast majority of cases
brought to trial. Over the two-year period,
convening authorities spent just under $4.4
million ($2.2 million annual average) on expert
fees in all Air Force courts-martial. Those fees,
which apply only to the 569 non-DOD civilians
identified in the study, averaged about $7,700
per expert for services rendered in each courtmartial.
However, because this figure combines
various levels of consultation along with incourt
testimony, it reflects neither the cost of
a few hours of pretrial consultation (which
typically stays in the range of $2,000-$3,000) nor
the cost of an expert witness who is
present throughout trial (which can
approach $12,000-$20,000). Because
individual convening authorities
absorb court costs at varying degrees
with budgets under increasing strain,
it is sometimes difficult to maintain a broader
institutional perspective on expert fees. In terms
of overall mission value and relative to other
service expenditures, $2.2 million a year is not
an unreasonable price for ensuring the Air Force
maintains a world-class justice system.
In addition to expert fees paid to non-DOD
civilians, there are also logistical costs that apply
to all experts who are required to travel for
trial support. In another effort to keep the data
collection burden to legal offices at an absolute
minimum, JAJM did not request the field to
provide information on travel or per diem
expenditures. Instead, the division leveraged data
already compiled in the Central Witness Funding
System (CWFS). In a nutshell, CWFS handles
the logistical costs of both military lay witnesses
travelling between commands (e.g., Airmen
returning to home station from a deployed
The use of experts
by both sides is
fairly even.
location) and drug testing expert witnesses (e.g.,
toxicologists from the Air Force Drug Testing
Laboratory). The volume of witnesses handled by
the system provides a large body of information
to calculate average logistical costs for any type
of traveler, including experts. Over the twoyear
period studied, travel and per diem costs
averaged $1,285 per witness ($763,052 divided
by 594 individuals). Using this average as a cost
basis, if all 928 experts appointed in 2007 and
2008 travelled, convening authorities would have
spent just under $600,000 per year in logistical
costs. Because not every expert travelled, this
projection is on the high side, but it provides an
accurate ceiling for cost estimate purposes.
PROSECUTION VERSUS DEFENSE EXPERTS
The military justice system is unique in that
the defense does not have an independent
means of obtaining expert assistance. Instead,
Air Force defense counsel request experts from
the convening authority who referred charges
to trial. 7 Contrary to the perceived sense of
imbalance sometimes expressed by legal offices
as they process these requests, the
use of experts by both sides is fairly
even, as prosecutors accounted for
45 percent (416 of 928) of all expert
witnesses and consultants appointed
in 2007-2008. Although the defense
averaged a robust total of 256 experts in each of
the two years studied, the prosecution’s average
of 208 was not far behind.
The government requires experts because
it bears the burden of proving its case beyond
a reasonable doubt, and experts are sometimes
the only means by which certain evidence can be
presented in court. The defense, in turn, asks for
experts to prepare effective cross examinations
of expert and lay witnesses, explore affirmative
defenses, and develop matters in extenuation
and mitigation.
The balanced distribution of experts between
the prosecution and the defense reflects the
Air Force’s commitment to providing “equal
opportunity to obtain witnesses and other
7
R.C.M. 703(d).
40
The Reporter

evidence,” 8 and a single convening authority
controlling access to expert assistance for both
sides helps ensure this balance.
CONSULTANTS VERSUS WITNESSES
For the purposes of the study, the term “consultants”
refers to experts who were
appointed to assist counsel either
before or during trial but who never
took the stand, while “witnesses”
are those experts who did in fact
testify at some point during the
proceedings. Because the government
has the burden of proof, one
would expect the prosecution to call
its experts to the stand more frequently than the
defense, and the numbers bear out this commonsense
assumption. Over the two-year period, 44
percent (185 of 416) of prosecution experts testified
at trial compared with only 19 percent (95 of
512) of defense experts. The fact that the defense
has the right not to put on a case, and commonly
exercises this right, explains why the government
was more than two times as likely to put its
experts on the stand. What is also significant in
terms of overall resource management is that so
few experts for both sides combined—30 percent
(280 of 928)—ever testified at all. The prevalence
of consultation suggests that the parties are fully
exploring issues before trial and calling experts
to testify only when necessary. Counsel, convening
authorities, and military judges all play a role
in ensuring that experts who do not testify are
present for court only when necessary. 9
MORE EXPERTS, FEWER COURTS
The study’s two-year time span does not
establish a sufficient foundation to identify
long-term trends in any category. However, one
short-term trend from 2007 to 2008 stood out.
In 2007, convening authorities appointed a total
of 413 experts for both the prosecution and the
defense Air Force-wide. In 2008, that number
jumped by 102 for a total of 515 experts, which
represents a nearly 25 percent increase from one
year to the next. If the number of courts-martial
during that same time period had increased at
approximately the same rate, this rise in experts
8
Article 46, UCMJ.
The demand for
mental health experts
in courts-martial far
exceeds the supply.
would have been expected. The reality is that
there were 12 percent fewer general and special
courts-martial from 2007 to 2008 (646 down to
579), which makes the spike in experts all the
more surprising. Although significant changes
to the Uniform Code of Military Justice that went
into effect on 1 October 2007 10
may account for a portion of the
increase in experts in 2008, there
is insufficient data to establish
a causal link between these two
events. Courts-martial in 2009
have returned to near 2007 levels, 11
and JAJM will continue to monitor
whether this short-term trend has
any long-term implications.
MENTAL HEALTH VERSUS
DRUG TESTING EXPERTS
After completing an initial analysis of the study
data, JAJM took a closer look at the two largest
categories of experts appointed by convening
authorities: drug testing and mental health specialists.
Combined, these two areas accounted for
59 percent (545 of 928) of experts during the study
period in roughly equal numbers (275 versus 270,
respectively). Even though the demand for each
specialty was almost identical, the sources and
costs of these two types of professionals were
markedly different. Over the two-year period,
non-DOD civilians comprised 43 percent (118 of
275) of drug testing experts at an average cost of
$4,461 per trial; experts from the Air Force Drug
Testing Laboratory and other DOD sources made
up the remaining 57 percent. During this same
period, non-DOD civilians comprised 87 percent
(234 of 270) of mental health experts at an average
cost of $10,294 per court-martial, excluding
travel and per diem. Conversely, DOD mental
health experts provided trial support an average
of only 18 times a year during the study period to
account for the remaining 13 percent.
The study highlights that the demand for
mental health experts in courts-martial far
exceeds the supply of available DOD assets and
the Air Force is paying a disproportionately
heavy price as a result. Of the $4.4 million paid
10
E.g., Article 120, UCMJ.
9
United States v. Kelly, 39 M.J. 235 (C.M.A. 1994).
11
According to AFJAMS, there were 632 general and special courts-martial in CY09.
Spring 2010
41

Expert availability can be the
single point of failure when it
comes to docketing a case.
in expert fees across all specialties in 2007-2008,
mental health experts received $2.4 million.
To put it another way, even though non-DOD
mental health experts comprised 41 percent
(234 of 569) of all civilians hired by convening
authorities worldwide, they received 55 percent
of the fees paid to all non-DOD civilian experts.
Finding ways to leverage new or existing DOD
assets to displace costly private mental health
services in courts-martial presents the Air Force
with a tremendous opportunity to save tax dollars
and increase support to the field.
BRIDGING THE MENTAL HEALTH GAP
Based on the study’s findings, JAJM reached out
to our counterparts in the Air Force Office of
the Surgeon General and established an ad hoc
working group in September 2009 to develop
various courses of action on how to improve
forensic mental health support in courts-martial
while reducing overall taxpayer costs. Through
this dialogue, we gained a better understanding
of the tremendous challenges facing the mental
health career field. The Air Force currently
has only nine forensic psychiatrists and just
one forensic psychologist out of its worldwide
cadre of providers. Mental health professionals
are high demand-low density assets who are
often not available to provide trial support due
to increasing clinical workloads, both at home
station and in deployed locations. Even when
available for trial, some Air Force providers feel
unqualified to meet the demands of trial work
and are hesitant to provide expert testimony
without additional forensic training.
After consulting with sister services and
considering a range of possible solutions, the
working group overwhelmingly supported the
concept of creating two civilian mental health
positions dedicated to court-martial support.
With a forensic psychiatrist based out of Wilford
Hall Medical Center in San Antonio, Texas, and
a forensic psychologist based out of Wright-
Patterson Air Force Base in Dayton, Ohio, the
Air Force could realize direct and indirect
savings of up to $300,000 annually 12 —a figure
that represents a 25 percent reduction in current
mental health expert costs. Just as important,
having embedded mental health experts would
exponentially increase the pretrial consultation
options for both trial and defense counsel. These
experts would also serve as a training team to
create a secondary cadre of mental health
providers with the forensic skills necessary
to assist counsel with their court-martial
duties. Although two full-time experts would
not eliminate the need for non-DOD civilian
experts, it would provide more balance to the
equation, increase consultation and training
capabilities, and still save tax dollars. This
concept of operations has won support from
JAG Corps leadership and could serve as a
model to improve expert support in other areas
as we move towards its implementation.
RECOMMENDATIONS
While long-term infrastructure solutions are
being developed and implemented, both the
government and the defense can take immediate
steps to help improve the management of forensic
expert services:
1. With the exception of capital cases, counsel
for both sides need to do their homework and
avoid a knee-jerk response that a certain type
of case always requires an expert. Supervising
attorneys must play an active role in this
threshold decision.
2. Base legal offices should reach out to
installation resources, especially in the field
of mental health, to assess and develop their
in-house expert capabilities. Many Air Force
professionals want to develop forensic skills,
and judge advocates should incorporate those
individuals in advocacy training.
3. Since the government controls the investigation,
preferral, and referral of charges, trial
counsel should plan for the appointment of
experts as an integral part of trial preparation.
12
Cost estimate based on OMB Circular A-76 (Atch C) standards, 2009 GS-15/14 pay and
locality tables, and CY07-08 expert fee averages applied to five proceedings per month.
42
The Reporter

Expert availability can be the single point of failure
when it comes to docketing a case and waiting
to line up an expert can be a costly mistake.
4. It is nearly axiomatic that if the government
has the services of an expert, the defense should
have equal access to an expert of its own. 13 Trial
counsel should inform the defense as soon as
possible about any government experts and have
the names and availability of qualified individuals
ready for the defense.
5. Defense counsel should never wait to make
a request for expert assistance and meritorious
requests must be made as early as possible.
If the government provides what it considers
an adequate substitute for a by-name request
from the defense, trial counsel must refrain
from attacking that expert’s qualifications in the
appointed field of practice if he or she takes the
witness stand. 14
6. When a defense request for expert assistance
comes in, the government must immediately act
on it. Grant the request in full, grant it in part,
find an adequate substitute, or deny the request
when appropriate as soon as possible so that
the defense can either make use of the expert
early or file the appropriate motion to compel. A
sluggish response to an expert request can result
in unnecessary trial delays.
7. Travel experts only when necessary. Once
an expert has been consulted, counsel for both
sides, and trial counsel in particular, must make
informed decisions about whether the expert is
necessary for trial if there is little likelihood that
they will testify or be of any added value in a
continuing consultation role. 15
8. Finally, as wise stewards of taxpayer funds,
both the government and the defense should in
good faith make every attempt to find qualified
DOD, federal, state, or, if only to save logistical
costs, local expert support. Air Force counsel
often limit themselves to a relatively small pool
13
United States v. Lee, 64 M.J 213 (C.A.A.F. 2006).
14
See R.C.M. 915; fair cross-examination into other matters would be permitted.
15
See United States v. Lee, supra. If trial counsel travels an expert, defense counsel is
justified to request the same.
of professionals who do not fall into any of these
money-saving categories. If the JAG Corps is
rethinking how we manage experts, that must
also include reevaluating which experts we use.
CONCLUSION
The expert witness and consultant study paints
an overall balanced picture that the Air Force can
be proud of and that taxpayers can applaud in
terms of resource management. Trial and defense
counsel are both zealously representing their
clients by exploring all aspects of their cases
with the assistance of a variety of experts who
can translate complex subjects into more easily
understood concepts for the benefit of the court
members. The types and numbers of experts
used reflect the types of charges the Air Force is
referring to trial. Although anecdotal experiences
can color one’s perspective, not once did anyone
over the course of the study suggest that Airmen
facing court-martial should not have the tools
necessary for a vigorous and effective defense.
JAJM will continue to analyze this dynamic
issue and collaborate with functional areas across
a range of subjects to engineer new solutions that
will meet the needs of justice in an ever-changing
landscape. The Military Justice Division is
always open to suggestions from the field on
how to improve our system, and we invite your
constructive feedback, thoughts, and ideas.
Major Conrad Huygen
(B.A., Humboldt State
University; J.D., University
of California, Davis)
is Chief, Policy and
Precedent Branch, Military
Justice Division, Air Force
Legal Operations Agency,
Washington, D.C. He has
served as a senior defense
counsel, circuit defense
counsel, area defense counsel, trial counsel, and
chief of military justice. Major Michael Suberly
and Ms. January Clifton deserve special credit
and thanks for their dedication in collecting and
compiling the data used in this article.
Spring 2010
43

B
O
O
K
S
CRISIS AND COMMAND:
A History of Executive Power From
George Washington to George W. Bush
By John Yoo (Kaplan Publishing, 2010)
Reviewed by Major Matt Burris, USAF
For God’s sake, my dear Sir, take up your pen, select the most striking
heresies and cut him to pieces in the face of the public. Thomas Jefferson
I
N
B
R
I
E
F
Admittedly, I was sharpening
my pen upon starting John Yoo’s
latest book, Crisis and Command – A
History of Executive Power from George Washington
to George W. Bush. After all, Yoo is the
attorney primarily responsible for the Justice
Department’s post-9/11 memoranda providing
legal cover for the enhanced interrogation
of detainees at the hands of the CIA 1 and the
NSA’s domestic warrantless wiretapping
program. Yoo’s opinion on the latter was so
radically expansive that then Attorney General
John Ashcroft and FBI Director Robert
Mueller, among other notables, threatened
to resign if the program was not reigned in. 2
Surely, exposing the fallaciousness of the
views of this zealot would be a cakewalk,
or so I thought. As is turns out, to read Yoo
is to discover a serious practitioner of history
with an undeniable knack for making
the radical seem reasonable. Although not
without its flaws, Crisis and Command is a
genuinely clever—albeit utterly humorless—
retort to critics of the Bush Administration,
in particular those who argued Bush’s
claims of executive authority and dismissal of
1
To which the Judge Advocates General of the Air Force and Army, as well as
the Staff Judge Advocate to the Commandant of the Marine Corps, expressed
opposition. Josh White, Military Lawyers Fought Policy on Interrogations, Wa s h. Po s t,
July 15, 2005, available at http://www.washingtonpost.com/wp-dyn/content/article/2005/07/14/AR2005071402187.html;
Dana Priest & R. Jeffrey Smith, Memo
Offered Justification for Use of Torture, Wa s h. Po s t, June 8, 2004, available at http://
www.washingtonpost.com/wp-dyn/articles/A23373-2004Jun7.html.
2
Frontline: Cheney’s Law (PBS television broadcast, Oct. 14, 2007), available at
http://www.pbs.org/wgbh/pages/frontline/cheney/.
congressional oversight were unprecedented
in U.S. history.
Yoo quickly sets about dispelling those
notions by examining the presidencies of
George Washington, Thomas Jefferson,
Andrew Jackson, Abraham Lincoln, Franklin
Roosevelt, and those he dubs, “The Cold War
Presidents”. Dedicating a chapter to each, Yoo
recounts how these Presidents, their bona
fides solidified by history, exercised executive
authority during times of national crisis. The
picture painted is one in which the qualities
of the unitary executive—“decision, activity,
secrecy, and dispatch”—are uniquely suited
to steer the ship of state through times of
crisis, and, more importantly, that the greatest
of these did not allow the Constitution, the
Congress, or the Supreme Court to wrestle
him from the helm.
On its face, this seems an absurd notion—a
President free to disregard or subvert laws
passed by the Congress; free to exercise
unchecked constitutional powers specifically
enumerated to the Congress; or free to
disregard the Supreme Court’s interpretation
of the Constitution if it contradicts his
interpretation of the Constitution. However,
according to Yoo, none of the aforementioned
is unprecedented in our history. Among
the precedents Yoo cites are: Washington’s
proclamation of neutrality in the war between
France and Great Britain following the French
44
The Reporter

Revolution—a move supported by Alexander
Hamilton, but which James Madison believed
was a usurpation of the Congress’s power
to declare war and a “practice in tyranny;”
Jefferson’s exercise of John Locke’s prerogative
in concluding the Louisiana Purchase, an action
Jefferson believed to be extra-constitutional;
Jackson’s lack of deference to the Congress, the
Supreme Court, and even former U.S. Presidents
regarding the constitutionality of the Second
Bank of the United States; Lincoln’s invoking of
his Commander-in-Chief authority to support the
Emancipation Proclamation, the suspension of
the writ of habeas corpus, and military detention
without trial; and, Roosevelt’s unprecedented
expansion of executive branch authority under
the New Deal, as well as his domestic surveillance
program during World War II, to name a few.
What makes Crisis in Command so clever is
that Yoo leaves it to the reader to draw parallels
between the extra-constitutional (and in some
instances unconstitutional) actions of our most
revered presidents and the heavily criticized
actions of the Bush presidency—to include,
inter alia: warrantless wiretapping of American
citizens, military detention of combatants without
trial or access to U.S. courts, and broad claims of
executive privilege. Indeed, Yoo does not explicitly
draw these parallels until the book’s final
chapter, by which time the ingenuous reader has
already drank the proverbial Kool-Aid.
However clever, this tack also exposes
a weakness in Yoo’s thesis. It is what Walter
Isaacson, who reviewed Crisis and Command for
The New York Times calls, “‘advocacy history,’
in which scholarly analysis and narrative
are marshaled into the service of a political
argument.” 3 While the historical parallels to
present debates are evident from the telling, it
is both fair and necessary to ask whether Yoo
has crafted the text in such a way as to avoid
the drawing of false equivalencies. The issue, as
historian Howard Zinn put it, is not dishonesty,
“it is omission or deemphasis of important data. 4
3
Walter Isaacson, Who Declares War, N.Y. Tim e s, Jan. 24, 2010, available at http://
www.nytimes.com/2010/01/24/books/review/Isaacson-t.html.
4
Howard Zinn, Th e Use a n d Ab u s e o f Hi s t o r y, in Pa s s i o n a t e De c l a r a t i o n s – Essays o n Wa r a n d
Ju s t i c e 48, 51 (Harper Perennial 2003).
“The definition of important, of course, depends
on one’s values.” 5
Consequently, what Yoo deems important—
chiefly, his aggressive advocacy of the unitary
executive theory—permeates his work, whether
he is authoring Crisis and Command or providing
legal advice to the President. Recently, a strikingly
similar criticism was levied against him by Associate
Deputy Attorney General David Margolis,
the Justice Department official responsible for
the disposition of professional misconduct allegations
relating to the aforementioned enhanced
interrogation memoranda. While disapproving
the Office of Professional Responsibility’s (OPR)
harsher reprimand, Margolis wrote:
While I have declined to adopt [OPR’s]
findings of misconduct, I fear that John
Yoo’s loyalty to his own ideology and
convictions clouded his view of his
obligation to his client and led him to
author opinions that reflected his own
extreme, albeit sincerely held, view of
executive power while speaking for an
institutional client. 6
Are his claims in Crisis and Command “striking
heresies” for which he deserves to be “cut … to
pieces in the face of the public” Perhaps, but as
Yoo indicated following a recent appearance on
The Daily Show with Jon Stewart, in which the
quick-witted host Stewart uncharacteristically
failed to land a blow, “I’ve spent my whole career
learning to settle down unruly college students
who have not done the reading.” 7 As Crisis and
Command reminds us, those seeking to duel with
John Yoo must clearly do their homework first.
5
Id. at 89.
6
Eric Lichtblau & Scott Shane, Report Faults 2 Authors of Bush Terror Memos, N.Y. Tim e s,
Feb. 19, 2010, available at http://www.nytimes.com/2010/02/20/us/politics/20justice.
htmlscp=1&sq=Report%20Faults%202%20Authors%20of%20Bush%20Terror%20
Memos&st=cse.
7
Christopher Beam, YooTube - Why Jon Stewart failed to make John Yoo squirm, Sl a t e
Ma g., Jan. 15, 2010, available at http://www.slate.com/id/2241742/.
Spring 2010
45

Boo k s in Br i e f
DROWNING IN THE DESERT:
A JAG’s Search for Justice in Iraq
By Vivian H. Gembara with Deborah A. Gembara (Zenith Press, 2008)
Reviewed by Captain Wendy S. Kosek, USAF
Photo by Rob Bakker
For JAGS preparing to deploy,
Former Army captain Vivian Gembara’s
memoir of her year-long deployment to
Iraq provides tremendous insight into the day-today
life of a judge advocate in the AOR. As the
only JAG assigned to a forward-operating base
with Third Brigade, Fourth Infantry Division,
Gembara details the challenge of establishing
the rule of law in a constantly changing warzone
where mission flexibility is mandatory, and the
desire to “win the fight” can lead some in uniform
to cross the line.
As the first JAG to prosecute an American
Soldier on Iraqi soil, Gembara describes her role
as trial counsel, explaining not only the difficulties
she experienced in obtaining evidence, but also
the risks associated with “leaving the wire” to
visit crime scenes and meet reluctant witnesses.
Firsthand, she sees the impact of combat-related
casualties on her fellow officers and enlisted
members, including the deaths of two senior
noncommissioned officers in the Army JAG
Corps. Preparing for trial, Gembara and her
fellow Soldiers literally must build a courtroom
from scratch, scavenging for materials to use
as seats and desks from the limited resources
available. During her first court-martial, one
of the key Iraqi witnesses becomes so nervous
after seeing another accused in the back of the
courtroom that he almost decides not to testify
out of fear the soldier will harm him. Ultimately,
Gembara is able to convince the witness to testify
against the accused and obtains a conviction—
underscoring the critical importance of the
military justice process as a diplomatic tool.
However, in the closing chapters, Gembara’s
narrative takes a darker turn. Outranked and
inexperienced, she struggles under the burden
of advising commanders who place a higher
priority on “the fight” versus accepting sound
legal advice. In the central controversy of the
book, the captain investigates a high-profile case
after U.S. Soldiers are accused of forcing two
unarmed Iraqis to jump into the Tigris River,
resulting in the death of a 19-year old. Gembara
implicates the entire chain of command, both
officer and enlisted, in a conspiracy to conceal
the drowning and other suspicious deaths. These
deaths of Iraqi civilians were widely-publicized
in 2004 and outrage spread when only two cases
46
The Reporter

went to trial. Rather, several higher-ranking
officers including a lieutenant colonel, major, and
a captain, received non-judicial punishment for
their roles instead of courts-martial. Further, the
author alleges that the Army denied her request
to exhume the body of one of the men to prove
beyond a reasonable doubt that he died by
drowning. Dejected, Gembara returns home to
Fort Carson only to hand over the pertinent case
files to two JAG majors at the airport—who she
believed would not seek justice. In Gembara’s
opinion, the military justice process failed, thus
Gembara’s lack of faith in the
Army JAG Corps will trouble many
JAGC members.
weakening diplomatic relations between the
United States and Iraq. Ultimately, the book is
a search for justice the author believes the Iraqi
victims and their families did not receive.
Gembara’s lack of faith in the Army JAG
Corps will trouble many JAGC members, as
will her unsupported claim that the Army
deliberately selected inexperienced JAGs from
Fort Hood to court-martial a first lieutenant and
a sergeant first class, the only Soldiers tried in
relation to the drowning in the desert. Moreover,
the author’s steady barrage of blunt criticisms
leveled at her coworkers strikes the wrong note.
Air Force photo by SSgt JoAnn S. Makinano
On page 12, Gembara calls her senior paralegal
(using his full name and rank) “a thorn in my
side” and describes working with him as “death
by a thousand cuts, daily.” While Drowning in the
Desert serves as a frank, no-holds-barred account
of the author’s experience in Iraq, her berating of
colleagues throughout the book is unnecessary.
The author could have accurately described
her experiences and raised legitimate criticisms
without mentioning actual names.
In conclusion, all Air Force judge advocates
and paralegals will find Gembara’s book relevant
to the myriad of challenges they will face while
deployed, including the willingness to “speak
truth to power.” However, the lingering bitterness
behind the censure of her former institution
and its members leaves a bad taste after an
otherwise intriguing read.
Major Matt Burris is
presently a L.L. M.
candidate in Air and
Space Law at McGill
University, Canada.
Upon graduation,
Major Burris will
be assigned to
Headquarters, U.S.
Strategic Command
(USSTRATCOM), Offutt Air Force Base,
Nebraska.
Captain Wendy S.
Kosek (B.A. University
of Notre Dame;
J.D., Notre Dame
Law School) is an
Assistant Staff Judge
Advocate at Little
Rock Air Force Base,
Arkansas.
Spring 2010
47

Paralegal
On Sentencing:
Who’s The Fairest of Them All
By Staff Sergeant Michael J. Badilla, USAF
Do you go judge alone or
members It’s one of the most
difficult questions that an Airman
facing court-martial has to decide. As a former
defense paralegal for the United Kingdom Office
of the Area Defense Counsel, I saw a number of
cases go to trial. When an Airman is convicted,
I ensured the sentencing package was ready
for admission as evidence, including matters
in mitigation for the sentencing authority to
consider when recommending an appropriate
punishment. How will that evidence be weighed
by a military judge versus a panel What I learned
is that the forum chosen by the accused at the
beginning of trial will often determine how well
he or she fares when the gavel falls.
Sentencing procedure and severity are
concepts that have been heavily debated by
military members for some time, and JAGC
members will continue to do so. There is no
standard, agreed-upon definition of what an
“appropriate” sentence is, nor what the fairest
forum for trial is. Nevertheless, choosing the
“right” forum for a case affords the defense an
opportunity to get the most favorable outcome
for their client.
Additionally, opinions on the harshness of
a sentence is a clear subjective matter subject
to interpretation of the various parties from their
vantage point in the system. Society at large, as
well as individual participants in the criminal
justice system, victims, and the accused all will
have particular viewpoints on how severe a sentence
is.
Military judges, officer members, and enlisted
members tend to base their sentencing opinion
on quite different backgrounds. Each diverse
group of potential panel members brings with
it opinions that formulate one of the most fairly
operated criminal justice systems in the world.
Differing opinions play a part in shaping how a
particularly educated individual reacts to certain
criminal cases brought before them.
When the accused requests a jury trial,
picking the best panel of members through
additional forum choices and the voir dire
process is the most effective way to get the fairest
individuals to decide on factual questions and
sentencing recommendations. However, courtmartial
panels typically have little to no legal
training. Their opinion is based simply on what
each side presents to them and decided upon by
the military judge’s instructions.
One cannot forget that military judges are
officers as well. What separates the opinion of
a typical rated or nonrated officer and a senior
judge advocate sitting on the bench is the level of
legal training. Military judges have a significantly
diverse legal background to base their sentencing
48
The Reporter

Perspective
Sometimes the only clear choice in selecting a forum is to first consider
the social tolerance of the crime at issue.
opinion on. They have likely not only prosecuted
individuals, but defended ones as well, as an area
defense counsel, a senior trial counsel, or possibly
as an appellate attorney. Seeing issues from both
viewpoints makes for a better informed decision.
In drug cases however, military judges tend to
sentence slightly harsher than officer panels do.
Sometimes the only clear choice in selecting
a forum is to first consider the social tolerance
of the crime at issue. To do so, the defense team
must analyze possible viewpoints of each forum
and apply lessons learned from this study when
appropriate to affectively guess how a particular
choice would pan out in the end, always keeping
the possibility of sentencing in mind.
There is no doubt that whichever forum an
accused chooses, they will receive nothing less
than the fairest treatment afforded by law. But
by carefully weighing forum choices however to
fit the particular criminal act(s) at issue, one can
attempt to acquire the most favorable outcome;
if not in findings, then at least in sentencing.
For both sides, the hardest part about this task
is to accurately read the tea leaves of the court
member’s data sheets, looking for weaknesses or
strongpoint’s to focus on during voir dire.
So long as there is not an option to have a
panel determine findings and a military judge
decide sentencing, punishment consideration
will always play a major role in choosing which
forum to select for trial. At present, military law
does not allow for an accused to mix military
judge sentencing and a panel for findings, which
the federal court system allows. Amending the
Manual for Courts-Martial to allow for this option,
as suggested by Colonel Steve Ehlenbeck, 1
1
Colonel Steven J. Ehlenbeck, Court-Martial Sentencing with Members: A Shot in the
could greatly affect how a member decides on a
forum and perceives the fairness of the military
justice system.
This is especially relevant to particularly
heinous crimes such as unusual sex cases and
other violations which are not tolerated in society.
In these cases, the defense team may face a
decision dilemma, believing that an officer panel
is the best to decide on findings while a military
judge may be best in deciding an appropriate
sentence if necessary. The accused must then
choose, making a gamble that will affect the rest
of his or her life. Having a choice to mix forums
in findings and sentencing would provide an
additional element to the member’s right to due
process, and enhance the perception of fairness in
the military justice system.
Thus, in deciding the question of members or
judge-alone perhaps the best and fairest answer
is all of the above.
Dark, Th e Repor ter, Summer 2008, at 33. See also, Major Brian Thompson, Judge Alone
Sentencing: Judicial Power Grab, Th e Repor ter, Spring 2009, at 12.
Staff Sergeant Michael
J. Badilla (B.S. , Park
University) is currently a
Claims & Legal Assistance
paralegal with the 48th
Fighter Wing, Royal
Air Force, Lakenheath,
England, United Kingdom.
This article was based on
his 2009 criminal justice
thesis: Competing Views on Sentencing Strength:
A Comparative Analysis of Courts-Martial
Forum Choice.
Spring 2010
49

Legal Assistance Notes
Legal Assistance Website Update
The new legal assistance website is being used on an increasingly frequent basis. As of 12 May the website
had 24,649 hits, 9,435 tickets issued, and 4,890 tickets processed. Website survey use continues to increase,
but is an area that will require continued attention in order to ensure success. TJAG has expressed
definite interest in survey completion rates as well as the content of those surveys. The average Air Force
ratings received so far are excellent, so don’t fear the feedback. Also, please give AFJAGS feedback as we
continue to improve the content of the website and its functionality.
Lessons Learned—Lessons Shared
Many great ideas originate at the base level, as well as important lessons learned. As the JAG Corps
continues to utilize CAPSIL, AFJAGS wants to expand its utilization into sharing these best practices
and lessons learned. One area under development is legal assistance articles. If your office published
legal assistance articles, please post them in CAPSIL so other bases can benefit from the knowledge
shared and avoid recreating the wheel. CAPSIL also contains a learning center where individuals can
share legal assistance handouts from their respective bases. If you have a single area where you need to
get a significant change in state law out to other chiefs of legal assistance or you have a novel approach
to a common problem, please send that information to AFJAGS so that we can post a notice in the New
Developments in Legal Assistance Learning Center.
Don’t Forget About FLITE
While CAPSIL is where AFJAGS will continue to place all new legal assistance information, don’t
forget that there is still a wealth of information located on the FLITE AFJAGS Legal Assistance Field of
Practice, at https://aflsa.jag.af.mil/AF/lynx/tolls/content.phpqrylvl=3&lvl2id=122232&lvl2folder=yes.
Eventually AFJAGS plans to update and migrate all of the field of practice data into CAPSIL, but in the
meantime continue to look on FLITE if you’re not able to satisfy your quest for information on CAPSIL.
National Guard and Reservists Debt Relief Act of 2008
Speaking of valuable information on FLITE, the National Guard and Reservists Debt Relief Act of 2008
is referenced under the Bankruptcy Field of Practice under Consumer/Financial Affairs. Thank you very
much to those who responded to the short notice request for information sent by Capt Scott Hodges in
March regarding the Act. It appears from the responses that the Act is something JAG Corps practitioners
have very seldom had a need to utilize in the past year. However, as the number of Airmen facing the
possibility of bankruptcy increases, keep in mind the protection this Act provides to the ANG and
Reserves. During active service of 90 days or more, and 540 days following activation, Guardsmen and
Reservists are exempt from the means-test requirement for bankruptcy. If you need more information on
the Act, please look at the Bankruptcy section on FLITE.
Legal Assistance E-mails—Are You Getting Them
AFJAGS regularly sends out information and requests for information through the chiefs of legal
assistance e-mail distribution list. If have not received any legal assistance e-mails from AFJAGS in the
last few months, and you want to be added to the distribution list, please send an e-mail to Capt Scott
Hodges at scott.hodges@maxwell.af.mil.
50
The Reporter

Legal Assistance Webcast Highlights
On 17 December 2009, Maj Jeff Kuebler, an Army National Guard JAG who practices immigration law, presented an
introduction and overview of the immigration legal arena. On 21 January 2010 he followed up with some practical tips and
advice. His presentations introduced attorneys to some of the agencies that can help with immigration law issues and also
explained some of the forms that are used. In addition to the recorded webcast, Maj Kuebler provided templates which are
also available in the recorded webcast learning center.
On 28 January 2010, Ms. Christina Smith, from the Pentagon Legal Assistance Office, gave a presentation on the Military
Spouses Residency Relief Act. She helped base legal assistance attorneys understand this short but complex piece of
legislation and its impact on military families. Most importantly, Ms. Smith went through several scenarios that legal
assistance attorneys could encounter and explained how the law would probably impact their residency status and tax
status in particular.
If you would like to view these or any previously recorded legal assistance webcast go to the Previously Recorded Webcast
learning center on CAPSIL at https://aflsa.jag.af.mil/apps/jade/collaborate/course/category.phpid=297. The learning
centers for the recorded webcasts also contain the presenter’s slides. The webcasts are arranged by date. If there are
specific areas you would like to see covered in a webcast in the future, please notify Capt Scott Hodges at DSN 493-2851,
scott.hodges@maxwell.af.mil.
New as Chief of Legal
Assistance
The Judge Advocate General’s School has
developed division chief courses, including
a Chief of Legal Assistance Course. This
three-hour course provides guidance for
leading the base legal assistance program
and offers key substantive law pointers on
will drafting, consumer law, and Veteran’s
Administration benefits. By TJAG direction,
completion of the course is mandatory
before a judge advocate may assume
division chief responsibilities within the
legal office.
Tax Filing Year 2010
Thanks so much for all your hard work to support the Volunteer
Income Tax Assistance program again this year. Please remember
that your interim reports for tax filing year 2010 are due 15 June
for CONUS installations, and 15 July for OCONUS. Utilize the Tax
Program Reporting System in JAGUARS to report the number of
federal and state electronic returns and paper returns, calculated
savings, and number of staff involved.
Your Legal Assistance Chief
Major Jeff Green
I will leave the school and the legal assistance position this summer.
I have really enjoyed working with all of you over the past year and
a half.
Capt Scott Hodges, who is currently an instructor in the Professional
Outreach Division at the JAG School, will take over as the Air Force
Chief of Legal Assistance. Capt Hodges has been working on legal
assistance issues since the beginning of this year, so the transition
should be smooth. As many of you have already started doing, please
make sure you include him on all correspondence you send to me.
If you have any legal assistance issues, please contact Capt Hodges
at scott.hodges@maxwell.af.mil.
U.S. Air Force photo by SSgt Jacob N. Bailey
Spring 2010
51

He r i t a g e t o Ho r i z o n s
The 60 th Anniversary
of the UCMJ
Major General Keithe E. Nelson’s personal copy of the 1951 Manual for Courts-Martial
This
TH
year marks the 60
Anniversary of the Uniform Code of
Military (UCMJ). On the 5th of May, President
Harry Truman signed the Military Justice Act of 1950,
establishing the UCMJ. Drafted by a working group
comprised of both civilian and military attorneys, the
bill called for the creation of a single system of justice
for all members of the United States Armed Forces. The
resulting changes to military justice not only increased
the fledgling Air Force JAG Department’s 1 workload,
but also required massive training efforts to familiarize
judge advocates with the new procedures and Manual
for Courts-Martial. Major General Reginald C. Harmon,
the first Air Force TJAG, did not support the changes
and remained critical of the UCMJ throughout his career.
In a 1952 address to the Judge Advocates Association,
General Harmon likened the effects of the UCMJ to “a
train being pulled too far down a track by too much
momentum, unable to stop when needed.”
Up until World War II, military justice in the Army
had been governed by the Articles of War. This system
was several hundred years old and had been formulated
primarily to serve the needs for strict discipline. The
Constitutional rights of individual defendants had
not been a major consideration in the evolution of the
system. During the war, there was massive exposure
of the system, as for the first time literally millions of
Americans had direct experience with it, which included
over two million courts-martial. The average American
viewed the system as too severe and subject to too much
command influence, resulting to widespread public
pressure for comprehensive reform. The first round of
reforms was instituted with the 1948 amendments to
the Articles of War, also known as the Elston Act, which
directed that TJAG appoint a Judicial Council composed
of three general officers to review of all cases in which
1
On 1 July 2003, the Secretary of the Air Force re-designated the Judge Advocate General’s
Department as the Judge Advocate General’s Corps.
a bad conduct or dishonorable discharge was adjudged.
However, the Act was never intended to be more than
an interim solution to the problem. Even before the
Elston Act became effective, Secretary of Defense James
Forrestal appointed a committee to draft a uniform code
for all three services that would completely replace
the Articles of War and the corresponding provisions
pertaining to the Navy. A working group of military
and civilian attorneys from the Department of Defense,
chaired by Harvard Law School professor Edmund
Morgan, drafted the bill presented to the Congress in
1949. It passed almost exactly as it had been drafted.
The Military Justice Act of 1950 and the resulting
UCMJ and Manual for Courts-Martial made sweeping
and sudden changes in the processes of military justice.
The immediate need for all JAGs to be trained in the
new procedures led to the creation of the first Judge
Advocate General Staff Course (JAGSOC) at Maxwell
Air Force Base, Alabama. Additionally, on the heels
of reform, the June 1950 invasion of South Korea once
again put the nation at war, providing an immediate test
of the UCMJ—which Air Force judge advocates would
ensure it passed.
For further information, read The First 50 Years of the
U.S. Air Force Judge Advocate General’s Department, by
Lieutenant Colonel Patricia A. Kerns, USAFR, upon which
this article is based.
The JAG School is in the process of establishing an
archive to preserve documents, photographs, and
memorabilia of historical significance to the JAG
Corps. Offices and individuals maintaining such
materials are encouraged to contact Mr. Wade
Scrogham, the JAG Corps Historian, to discuss
potential donations to the JAG Corps Historical
Archive. Wade.scrogham@maxwell.af.mil
52
The Reporter

Where in the World
“The Sands of QATAR” by Major James Jimmy Do, USAF, an instructor at the U.S. Air Force Academy,
while deployed with Major R. Aubrey Davis, HQ AFSOC/JA. If you have a unique, funny, or poignant
photograph of your travels in the JAG Corps for inclusion in “Where In The World” please e-mail the
editor at ryan.oakley@maxwell.af.mil.
Call for Submissions!
Volume 67 of the Air Force Law Review, scheduled for publication in April 2011, will be
dedicated to the topic of criminal law. Members of the JAG Corps are encouraged to submit
articles that fit within this broad topic area. Submissions are due by 15 October 2010.
Submission guidance is available on the Judge Advocate General’s School FLITE website
or by contacting Capt Scott Hodges at scott.hodges@maxwell.af.mil, or Maj Ryan Oakley at
ryan.oakley@maxwell.af.mil.
Spring 2010
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THE JUDGE ADVOCATE GENERAL’S SCHOOL
UNITED STATES AIR FORCE
AFJAGS PRESS
THE JUDGE ADVOCATE GENERAL’S SCHOOL
150 CHENNAULT CIRCLE
MAXWELL AFB, AL 36112-6418
U.S. Air Force photo by TSgt Rene Castillo